This blog summarises the new care home visiting rules across the UK’s four nations of England, Scotland, Wales and Northern Ireland.

This blog was correct on Tuesday 5 January 2021. I will endeavour to keep the blog updated as the law and guidance inevitably changes. If you spot any mistakes please let me know by email or Twitter

England

The new national lockdown began on 5 January 2021. The “Stay at Home” guidance is here. It says that “Visits to care homes can take place with arrangements such as substantial screens, visiting pods, or behind windows. Close-contact indoor visits are not allowed. No visits will be permitted in the event of an outbreak.” 

The national lockdown Regulations put all of England into Tier 4. Paragraph 2(7)(e) of the Regulations allows you to lawfully leave  home to visit a person receiving treatment in a hospital or staying in a hospice or care home if that person is a member of your household, a close family member or a friend. 

The lockdown guidance refers to the Visiting care homes during COVID-19 guidance (updated on 19 December 2020) which says:

“We recognise how important it is to allow care home residents to safely meet their loved ones, especially for those at the end of their lives. We appreciate the particular challenges visiting restrictions pose for people with dementia, people with learning disabilities and autistic adults, amongst others, as well as for their loved ones.”

All care homes – regardless of Tier, so this includes the national lockdown – and except in the event of an active outbreak in the care home – should seek to enable outdoor visiting and ‘screened’ visits, the guidance says. These can take place when visitors have not been tested for COVID-19. 

Visits should happen in the open air wherever possible, including under cover. The visitor and resident must remain at least 2 metres apart at all times and the visit can take place at a window. Some care homes have outdoor structures which are enclosed to some degree but are still outside the main building of the home. Where this is not possible, a dedicated room such as a conservatory can be used. Some care homes have “pods” which are rooms or structures with a clear Perspex or glass sheet running down the middle, creating in effect two rooms, each with their own air flow, with microphones and loudspeakers each side of the division sheet.

Providers must ensure that:

  • the visiting space is used by only one resident and visiting party at a time
  • the space is subject to enhanced cleaning between each visit
  • the visitor enters the space from outside wherever possible
  • where there is a single access point to the space, the resident and visitor enter the space at different times to ensure that safe distancing and seating arrangements can be maintained effectively
  • there is a substantial screen between the resident and visitor, designed to reduce the risk of viral transmission
  • there is good ventilation for spaces used (for example, including keeping doors and windows open where safe to do so and using ventilation systems at high rates but only where these circulate fresh air)
  • consider the use of speakers, or assisted hearing devices (both personal and environmental) where these will aid communication. This will also avoid the need to raise voices and therefore transmission risk

The guidance says that there should be one constant visitor wherever possible, with an absolute maximum of two constant visitors per resident. Visitors must wear PPE. There should be physical distancing between visitors and residents, staff, and visitors from other households.

The registered manager of each care home is responsible for setting a visiting policy for that care home, on the basis of a “dynamic risk assessment”. The guidance contains tips for managers writing their visiting policy and when making visiting decisions for particular residents or groups of residents. It reminds providers of infection-control precautions and the need to communicate with family and others about the visiting policy and visiting decisions. 

All care homes in Tier 1, 2 and 3 (which is currently nowhere in England) – except in the event of an active outbreak – should also seek to enable indoor visits where the visitor has been tested and returned a negative result. These should take place after the visitor has been tested. Many care homes now have lateral flow testing kits for this purpose. The guidance set out that with testing, “it may be possible for visitors to be have physical contact with their loved one, such as providing personal care, holding hands and a hug”. The prospect of touching a loved one has now been abandoned under the national lockdown, except at end of life.  

The guidance says that for people who lack capacity to consent to the care home's visiting policy a best interests decision must be made on their behalf. The government has published Coronavirus (COVID-19): looking after people who lack mental capacity which was last updated on 24 December 2020.

Scotland

Scotland entered a national lockdown on 26 December 2020. The Scottish Government's adult care homes guidance was updated on 23 December 2020. A letter by the Chief Nursing Officer, Interim Chief Medical Officer and the Director for Social Care and Mental Health of the Scottish Government explains the new visiting rules.  

The advice is that only "essential visits" only may take place indoors. This term includes “circumstances where it is clear that the person’s health and wellbeing is changing for the worse, where visiting may help with communication difficulties, to ease significant personal stress or other pressing circumstance”. This includes end of life care. It also includes a deterioration in mood, cognition, appetite or mobility where the cause of the decline is not due to Covid-19 and “where an interaction with a key loved one might be felt to help improve mood or cognition”. 

Visitors should have a lateral flow test that care homes provide. If a visitor refuses a test, the advice is to continue to support the visit as long as the normal infection prevention and control precautions are followed. If the visitor tests positive, care homes are instructed to tell the visitor to leave and isolate at home. The Scottish Government has published more guidance on care home visitor testing here.

In the current lockdown, outdoors visits to a care home to see loved ones via garden or window visits may be arranged with the care home in advance. Garden visits are limited to one visitor and visits by children and young people are suspended.

Wales

Wales has been in lockdown since 20 December 2020. The Welsh Government’s lockdown FAQs says that visits to care homes “are permitted in exceptional circumstances, where they are allowed by the relevant setting. In each case, the service provider needs to put in place appropriate social distancing and safety measures before allowing visits, and you should contact them before travelling.”

The relevant legislation is The Health Protection (Coronavirus Restrictions) (No. 5) (Wales) Regulations 2020 which was made by the Welsh Ministers on 18 December 2020. It sets out 4 alert levels. These are similar (but not the same) as the 4 tiers in England. All of Wales is currently in Alert Level 4 which requires people to stay at home. Leaving home is lawful only if a person has a reasonable excuse. Strangely, visiting someone in a hospital, care home or hospice is <u>not</u> listed as a reasonable excuse in the legislation. 

(However, it is lawful to leave the home if the person is “providing, receiving or accessing care or assistance, including childcare or relevant personal care” (para. 1(3)(e) of Sch 4), but this would not cover a 'mere' visit to a care home where the visitor is not providing care). 

I think/hope the omission in the Regulations is a drafting error, given that the Welsh Government published guidance for providers on visits to care homes dated 17 December 2020. There's an Easy Read version too.

The care home visits guidance says that, “it is especially important that people are supported to maintain their relationships with families and friends and have access to professionals when needed. Providers have been supporting people to maintain contact in a variety of ways via telephone calls, video calls, newsletters, cards, photographs and e-mails.”

It introduces the concept of a “designated visitor” which means a single relative or friend of a resident who is the primary indoor visitor when COVID-19 circumstances allow. The purpose of assigning only one person is to reduce the footfall in the care home and thereby reduce the risk of infection. Each designated visitor may have a “deputy” if the designated visitor is genuinely unavailable (due to illness, for example), but the roles are not intended to be interchangeable. 

If there is an outbreak of COVID-19 at the care home, both indoor and outdoor visits must be restricted to exceptional circumstances such as end of life. Visitors should only visit a care home that has been clear of COVID-19 for 28 days, unless visiting for end of life or exceptional circumstances.

The Welsh guidance does not refer to lateral flow testing of visitors. It only refers to testing that might have taken place outside the care home. 

The guidance says, “Visitors who have had a test should not visit the home regardless of that test result, until 14 days from exposure have passed.” The requirement for a period of 14 days since taking a COVID-19 test (rather than returning a positive result) is not a requirement in England, Scotland or Northern Ireland. 

A final curiosity about the Welsh approach. The guidance contains an “Ethical framework” which is a list of principles to guide care home managers to make decisions. The guidance lists “human rights” as a principle to be considered alongside abstract nouns such as respect, reasonableness, inclusiveness, flexibility, accountability, proportionality and community. (Those abstract nouns are also listed in the Westminster government’s Ethical framework for adult social care published on 19 March 2020.) The Welsh government’s position makes little sense and is in my view incorrect in law. A human rights approach <u>is</u> the framework. Care homes that limit visitors are organisations that carry out a public function and therefore must comply with the Human Rights Act 1998. The suggestion that care homes must have regard to human rights alongside a list of lofty principles makes little legal sense. 

Northern Ireland

Northern Ireland went into a national lockdown on 26 December 2020 which will last six weeks, with a review after that. The latest COVID-19 Regulations do not permit visits to care homes during the current lockdown, except for end of life.

The Northern Ireland Executive's guidance on the lockdown says that “Care home visits are recommended to be restricted, with the exception of palliative care facilities and those who are receiving end of life care.” The guidance advises people to check with individual care homes.

On 23 September 2020, the Health Minister advised that care homes should facilitate one face-to-face visitor per week, introducing the concept of a “care partner” which is the same as the "designated visitor" concept in Wales. The NI Executive published its “COVID-19: Regional Principles for Visiting in Care Settings in Northern Ireland” document the same day – I will refer to this as the “Regional Principles document”. There's also a short version, a summary for family and friend carers and an Easy Read version. These documents were last updated on 13 November 2020.

The Regional Principles document uses the word “Surge” and set out different levels. In Level 4 (Medium Surge), indoor visits may take place in a resident’s room. One person can visit for one hour on one occasion per week, where this can be accommodated within social distancing. The purpose is “to limit unnecessary footfall through the care home premises and minimise potential for spread of infection”. Visitors must wear PPE. Care homes should identify residents who will physically, mentally and/or emotionally benefit from input from a care partner and who they would like to be their care partner. This does not have to be a family member. In many circumstances a close friend may have previously acted in the care partner role. The guidance is silent on what care homes should do if a resident lacks capacity to make this decision.

The Regional Principles document sets out that each care home must undertake a risk assessment which “should include consideration of a COVID Secure environment: social distancing, environment, single rooms, effective ventilation, hand hygiene, face coverings infection control issues such as local outbreaks, as well as psychosocial considerations for the patient and those important to them. This involves Covid-19 risk assessment of the visitor, PPE availability and adherence to donning and doffing.”

On 23 November 2020, some eight weeks after the Regional Principles document was published, the BBC reported that most care homes had not implemented a visiting scheme.

In Level 5 (High/Extreme Surge), only end of life visits are permitted, and in all other circumstances, alternatives to face-to-face visits should be provided. Confusingly, the current COVID-19 guidance does not use the words Surge or Levels, but I am guessing that the national lockdown in Northern Ireland is what the Regional Principles document calls Level 5.