Associate solicitor at Irwin Mitchell, Katy Cowans (pictured), provides legal guidance on visiting rights and restrictions in care homes during the current health crisis.
The COVID-19 crisis is proving a challenge to us all in every aspect of daily living. Given the output from the media and the messages from the Government that those over the age of 70 are the most vulnerable to COVID-19, those caring for the elderly and vulnerable will be concerned that the correct measures are put in place to ensure their safety and protection whilst continuing their contact with those most important to them.
This is a difficult balancing act between public safety and the right to a family life under Article 8 of the European Convention on Human Rights. The government has urged the sector to take a balanced approach.
Care homes need to establish a clear policy for any restrictions imposed on contact between family or close friends and those in their care which is easily accessible to those who need it. The current advice is that social distancing measures need to be taken, which requires everyone to stay 2 metres apart from anyone they don’t live with and to take extra care in hand-washing. Essentially, this means no hugs or holding hands during visits in any care home and that could be very difficult for those in care to accept.
But what happens if restrictions are imposed on people who do not accept them or don’t have mental capacity to understand them? It is likely that the Department of Health will produce guidance around this point, but in the meantime, care home managers will always need to have in mind the provisions of the Mental Capacity Act 2005 (MCA). Any restrictions need to be in compliance with the MCA to reduce the prospect of disputes and legal challenges in the Court of Protection.
If someone lacks capacity to make decisions regarding the restrictions then a cautious approach to contact should be considered. It is likely that deprivation of liberty procedures are already in place, but if not then this needs to be considered as a matter of urgency. If there is a standard authorisation in place then the home can, and arguably should, consider asking family to co-operate by not arriving at the home for a visit, but rather using alternative means of contact such as FaceTime, Skype or the good old-fashioned telephone. This is not ideal, particularly for those who may find this confusing, but it is better than putting lives at risk by personal contact.
If there is no DOLS authorisation in place and an individual is intent on leaving the care home to have contact with family, restraint should only be used as a last resort. If care home managers feel there is no choice but to use restraint then, in order to avoid allegations of assault or unlawful deprivation of liberty, there may be a defence under Section 6 of the MCA if two conditions have been met: (1) it must be a necessary act to prevent harm and (2) it must be a proportionate response to the likelihood of that individual suffering harm and the seriousness of that harm. In the current health crisis, COVID-19 is likely to be seen as justification for restraint as it could well lead to hospitalisation or death. Such use restraint can only be used by persons who are suitably trained and take a proportionate approach.