Legal update
be decided could have arrived at it’. The third ground for challenge is procedural impropriety, which is based on procedural fairness and the notion that natural justice should be followed.
A question of human rights? There is also a new ground, which may well be the ground on which the current challenge to the DHSC guidance might be brought, which is under the Human Rights Act 1998. This ground would rely on the concept that ‘it is unlawful for a public authority (i.e. the DHSC) to act in a way which is incompatible with a Convention Right’ on the basis that a person’s human rights might be breached if he or she is denied visits. If the challenge is successful, then the Court might issue a quashing order that sets aside the DHSC guidance, which would clear the path for the matter to be remitted back to the DHSC for further consideration.
If so, the irony is that a quashing order may actually leave care home operators in a worse position - in the short term - until such time as the DHSC has reconsidered the process. If the July guidance is quashed, there will presumably be no official guidance at all to help care providers.
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Apart from the potential legal challenge to the DHSC guidance, there is also a second, but very important, legal point that care home providers must consider. This is the need to ensure that their risk assessments and visiting policies are carefully drafted and are clear and precise, so that they can be easily understood by both residents within the care home and also relatives/visitors.
It is also absolutely essential that whatever policies are put in place by care home operators are applied carefully, fairly and consistently in all cases. The more detailed a policy, the more human resources will be needed in terms of decision making, particularly where an operator decides to have different visiting rights for different classes of resident.
Providers should keep detailed notes of the decision-making process. Decisions should be made on a case-by- case basis, and providers must follow and observe their own visiting policies, failing which they may find themselves in difficulty.
Disclaimer The above article is not intended as legal advice and must not be relied upon as such.
Tom Lumsden TCHE
Tom Lumsden is a partner at CooperBurnett LLP in Tunbridge Wells in Kent. The law firm specialises in commercial property. Tom has particular expertise in the sale and purchase of care homes, including acquiring land for care home developments.
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