UK Parliament / Open data

Guaranteeing the right to maintain contact in care settings

Commons Debate pack by Niamh Foley and David Foster. It was first published on Thursday, 20 October 2022. It was last updated on Wednesday, 26 October 2022.

The subject for the debate has been chosen by the Backbench Business Committee.

Current position on contact in care settings

There is currently no specific legislative requirement for care homes in England to allow visits from friends and family members. However, guidance published by the Care Quality Commission (PDF), the regulator of health and care services in England, says “care home providers should enable a resident to see their family and friends if the resident wants to.” The guidance adds that if a care provider does not do this they could be in breach of regulations – for example, around providing person-centred care and ensuring people are treated with dignity and respect. The Care Quality Commission (CQC) can take enforcement action if a provider is not meeting regulatory requirements.

Care home visiting is also relevant in the context of human rights, including the right to life (Article 2), the right to liberty and security (Article 5) and the right to respect for private and family life (Article 8). In general, however, only publicly-funded residents in care homes are able to raise arguments based upon the Human Rights Act 1998 directly against providers. A report published by the Joint Committee on Human Rights in May 2021 (PDF) provided further discussion of care home visiting and human rights (paras 5-14).

National Care Service (Scotland) Bill

The Scottish Government introduced the National Care Service (Scotland) Bill to the Scottish Parliament on 20 June 2022. Amongst other things, the Bill would place a duty on Ministers to require care homes to comply with any direction Ministers make about visits to care home residents or visits by residents. Ministers would be required to consult with Public Health Scotland and others as appropriate before issuing a “visiting direction”. No similar provision currently exists in England.

Further information is available in the explanatory notes to the Bill (paras 80-81).

Covid-19 pandemic

Visiting restrictions were placed on care settings in response to the Covid-19 pandemic, although the precise restrictions changed several times. Between 2 April 2020 and 22 July 2020, for example, Government guidance advised against all visits to care homes except in exceptional circumstances, such as end of life. An overview of restrictions over the course of the pandemic is provided in section six of the Library briefing: Coronavirus: Adult social care key issues and sources.

Specific guidance on care home visiting has now been withdrawn, but guidance still exists as part of the broader guidance on infection prevention and control in adult social care in the context of Covid-19, last updated on 11 October 2022. This says “there should not normally be any restrictions to visits into or out of a care home.” It adds, in the event of an outbreak of Covid-19, care home residents should be able to have one visitor at a time inside the care home.

Commentary

Concerns have been raised on the impact of the visiting restrictions imposed during the Covid-19 pandemic. Several groups, including Rights for Residents, the Relatives and Residents Association and John’s Campaign, have campaigned for care users to be given a legal right to have visitors.

Further details are provided in section 6.4 of the Library briefing on adult social care and Covid-19.

Joint Committee on Human Rights Report

The Joint Committee on Human Rights (JCHR) published a report on the human rights implications of the Government's response to Covid-19 (PDF) in September 2020 and a report on care home visiting during the pandemic (PDF) in May 2021. Following on from this, in July 2022 the JCHR published a report on protecting human rights in care settings.

The report recognised Government efforts during the Covid-19 pandemic to balance the state’s requirement to protect the lives of care users with their other rights, including the rights to private and family life. However, the report said, “too often the correct balance has not been struck and too much had been left to individual care settings to determine” (para 66). It added “insufficient respect was given to ensuring meaningful contact between care users and their family members and loved ones during the pandemic, and in some cases, since general restrictions on the public ended” (para 69).

As well as raising issues with the guidance on visiting, the JCHR’s report noted care providers have not been bound to follow it. It added the Committee continued to receive evidence showing the guidance has not been applied consistently across different care settings (paras 72-76).

The Committee concluded it did “not believe there are sufficient measures in place to ensure adequate respect for the right to private and family life (Article 8 ECHR) in relation to care users and visiting arrangements in care settings” (para 81). It recommended the Government must legislate to:

Give care users the right to nominate one or more people to visit and provide support or care in all circumstances, subject to the same infection prevention and control rules as care staff (para 83).
Give the CQC the power to require care settings to inform them of any changes to their visiting status, and to report live data on levels of visiting and restrictions. It added that the CQC must “make compliance with visiting restrictions a key consideration when undertaking its regulatory and monitoring roles” (para 84).

The Government has not yet responded to the Committee’s report.

Parliamentary material

Parliamentary Questions

Social Services: Visits

21 July 2022 | 37531

Asked by: Karin Smyth

To ask the Secretary of State for Health and Social Care, what plans he has to bring forward legislative proposals on visiting arrangements in adult social care settings

Answering member: Gillian Keegan

The Government’s guidance states that care home residents should be able to receive visits from at least one visitor when there are restrictions within the home, such as during an outbreak of an infectious disease or while they are isolating. Visiting concerns may be raised with the Care Quality Commission, which will investigate whether a provider is following this guidance. The Department continues to keep the need for legislation under review.

Care Homes: Visits

14 March 2022 | 137253

Asked by: Fabian Hamilton

To ask the Secretary of State for Health and Social Care, whether care homes are legally able to deny visits from family or friends if there are positive cases of covid-19 in that care home.

Most care homes are privately run and free to make their own decisions about access to their properties. Before making these decisions, providers should consider the rights and views of their residents and the contractual relationship.

Answering member: Gillian Keegan

Care homes and other providers of social care have legal duties to protect their staff and residents from infection and to provide quality care. Under powers granted by the Coronavirus Act 2020, access to premises can be restricted in certain circumstances if required to prevent the spread of the virus. When there are positive COVID-19 cases within a care home, the guidance states that every resident should be allowed an essential care giver to visit inside the care home. Window or pod visits can continue with other visitors.

Care Homes: Visits

2 February 2022 | 107695

Asked by: Dan Carden

To ask the Secretary of State for Health and Social Care, pursuant to his Answer of 9 December 2021 to Question 90496, what steps his Department is taking to improve compliance with Government guidance relating to visiting residents in care homes.

Answering member: Gillian Keegan

The Care Quality Commission assesses visiting arrangements as part of its regular inspections of care settings or when investigating complaints. We also work with UK Health Security Agency health protection teams to resolve any local issues with non-compliance. The Department provides guidance and communicates through regular stakeholder meetings, newsletters and social media to state that blanket bans on visiting are not acceptable. The most recent data as of 21 December 2021 shows that 92.9% of care homes in England were accommodating visitors.