Visiting in Care Homes, Hospitals & Hospices

Our consultation response was co-written with Lived Experience Experts (LEEs) who contributed their direct experiences of visitation issues in hospital settings before the COVID-19 pandemic. BIHR also drew on our extensive work with individuals and staff in care homes and hospitals both pre- and post-pandemic to inform our submission.

We said the UK Government needs to listen to lived experience voices in deciding whether further legislation in this area is the solution. If so, this should also include how such legislation should be designed, implemented and enforced to best ensure the rights of those accessing care homes, hospitals and hospices and their loved ones are met in practice. Specifically:

BIHR supports making existing rights protections explicit across required new legislation, guidance and policy. We saw through the Coronavirus Act the importance of placing the requirement to act compatibly with rights enshrined in the European Convention on Human Rights on the face of the Act (these are the rights in our Human Rights Act). However, the consultation doesn’t say why new secondary legislation has been identified as the solution to the very real issues with visiting restrictions faced by people and their loved ones in practice.

Our work supporting public bodies to implement existing human rights law has demonstrated that simply adding more legislation to an already complex maze of legislation is not always the solution. We believe that supporting public bodies (and those delivering public functions) to put existing laws into practice is key. The Human Rights Act already protects the Article 8 right to private and family life, including the right to visitors, and it is important that staff know this is a legal duty which they must respect, protect and fulfil across all decision and actions. If staff are not meeting their existing legal duties under the Human Rights Act, there is a duty to properly investigate why and put measures in place to rectify this. If research shows that secondary legislation is required to address the visiting issues faced by individuals and staff, then . However, at present, our experience over 20 years of this work is that new legislation is not a magic wand for addressing rights issues; resource is better used to support proper implementation of current human rights legislation.

If the consultation reveals that new secondary legislation is required, this legislation must mirror the existing legal protections in the Human Rights Act. The right to private and family life ensures that any restriction on visits which impacts a person’s contact with loved ones (and their autonomy, well-being and/or participation in the community) must meet a three-stage test set out in the Human Rights Act. If CQC regulations are amended to include a new standalone right to visitors, any permitted restriction of that new right must align with existing legislation. If the standard sits in contrast to existing human rights legislation and instead asks staff to make decisions based on broader terms such as “reasonable” or “appropriate”, this will lead to confusion which leads to worse outcomes for individuals and their loved ones.

Staff must be given mandatory human rights training and supported to use a framework to make individualised and proportionate . If new secondary legislation is introduced, there must also be long-term planning and resources provided to ensure its effective and rights-compliant implementation.

All public bodies have the same duties under the Human Rights Act. While the consultation asks if different restrictions should be in place in care homes versus hospitals and hospices, people’s experiences of these settings often overlap and the individuals accessing these services will have very different circumstances. Across all settings, decisions should be made compatibly with the legal rights of the individual and their loved ones on a case-by-case basis. There is no one-size-fits-all approach to applying human rights in any setting and this makes blanket exceptions of the kind suggested in some of the consultation’s questions unworkable in practice.

We would like to better understand how providers and CQC will enforce the new right and what any changes will mean in practice. In particular, individuals should have recourse to CQC when their rights are not being upheld and any restrictions on non-absolute rights should be justified to individuals and their loved ones as well as CQC, following the three-stage test in the Human Rights Act.

You can read more about the importance of visitors and real-life stories of patients. residents and their loved ones, including examples of poor practice and positive practice, here.

The Department for Health & Social Care decided to introduce secondary legislation in the form of a new fundamental standard. This is Regulation 9A: Visiting and accompanying in care homes, hospitals and hospices. 

The regulation says that visiting rights can be restricted in "exceptional circumstances" but does not include a list of such circumstances.

After the Department for Health & Social Care's consultation concluded, the Care Quality Commission (CQC) launched a new consultation on guidance to accompany the regulation. This is designed to support practitioners to put the law into action.

We wrote to the CQC highlighting a number of concerns with their proposed draft guidance:

1. The draft guidance did not reference the Human Rights Act at all.
   
   
2. The draft guidance did not set out the legal test already established under the Human Rights Act for restricting rights i.e. any restriction must be lawful, legitimate and proportionate.
   
   
3. The draft guidance did not make specific reference to the right to private and family life and the right to liberty.

CQC has now published their final guidance and have made a number of important changes based on the consultation responses, including:

Reference to the Human Rights Act:

BIHR said: “We are concerned not to see the requirements of the Human Rights Act listed amongst these other key bits of legislation... we ask that CQC consider the addition of a sentence here which reads “policy and practice around visiting must be compatible with the HRA.”

The consultation analysis said: “A few respondents raise other concerns, which include:… Absence of the Human Rights Act (HRA) from any statements of relevant related legislation”

The final guidance said: “A human rights-based approach to decision making can support providers in enabling visiting and accompaniment and when considering restrictions in complex situations. This includes considering the appropriate balance between a person's right to private and family life, independence, choice and control, risk and safety. Providers must consider whether restrictions are lawful, legitimate and proportionate.”

and “Providers must also work within the requirements of the Human Rights Act 1998 and the Equality Act 2010, including the Public Sector Equality Duty, where applicable, and make reasonable adjustments.”

Reference to the right to private life and the lawful, legitimate and proportionate test:

BIHR said: “We are equally disappointed not to see mention of the right to private, family life, home and correspondence (Article 8, HRA) under which public officials must already ensure any restriction on visiting meets a legal test.”

The consultation analysis said: This issue was not explicitly highlighted in the consultation analysis.

The final guidance said: “A human rights-based approach to decision making can support providers in enabling visiting and accompaniment and when considering restrictions in complex situations. This includes considering the appropriate balance between a person's right to private and family life, independence, choice and control, risk and safety. Providers must consider whether restrictions are lawful, legitimate and proportionate.”

and “Providers must consider that any restriction to a person's right to receive visitors is lawful, has a legitimate aim and is proportionate. Proportionate means that there is the least restriction possible to achieve the aim.”

and “Providers must keep a record of any assessment and decisions on visiting. They should be able to demonstrate:… how the balance of the person's rights has been considered; whether restrictions are lawful, legitimate and proportionate; whether they have implemented any mitigations to make sure they have used the least restrictive, most reasonable option when they have reviewed the restrictions.”