What is becoming apparent during the current lockdown, and generally during the pandemic, is that many of those managing care homes, whether they are privately owned or maintained by the local authority, do not have a clear grasp of the law and guidance relating to family and residents’ rights to visit their loved ones in the care home setting. Too frequently we are presented with requests from family members and advocates asking for help to resolve a problem in this area. Moreover, this is not a problem confined to the current health crisis.
The Human Rights Act 1998 provides protection for care home residents. Article 8 of the European Convention of Human Rights (ECHR) states that everyone has the right to a private and family life, which includes the right to regular contact with your family. A ban on this contact interferes with this right. The courts have demonstrated consistently that they will intervene to protect the rights of the individual in such circumstances. The existence of a private contract between a private care home and a local authority or the resident does not prevent the right to a public law and human rights challenge. The case of YL v Birmingham City Council and Others, brought by Irwin Mitchell in 2007, was taken all the way to the highest appeal court and led to the introduction of Section 145 of the Health and Social Care Act 2008 which provides that any private care home under contract with a local authority to provide care and accommodation is now considered to be exercising “functions of a public nature” within s6(3)(b) of the Human Rights Act 1998. Put simply, if a privately owned care home makes a decision that is unlawful or unreasonable, a claim can be issued in a court seeking an injunction order, a declaration that the decision is unlawful and, on occasion, damages.
What is the situation now?
Where care home residents lack capacity to make their own decisions regarding contact, a decision must be made in their best interests. The least restrictive and best way of promoting contact should be followed, in line with the principles of the Mental Capacity Act 2005. In a letter to practitioners in the Court of Protection dated 15 October 2020, when England was being placed into various different ‘tiers’, the Vice President, Mr Justice Hayden said that “Of particular concern to us, in the Court of Protection, is the impact the present arrangements may have on elderly people living in care homes. The extent to which this group has suffered during the course of the pandemic public health crisis is well known and documented. One of the limited number of positives, is that it was possible to establish pragmatic and imaginative arrangements for contact with relatives during the course of what we have come to know as ‘lockdown’.
For the purposes of the current situation the Health Protection (Coronavirus, Restrictions) (England) (No.4) Regulations 2020 confirms in Section 11 that there are exceptions to the prohibition of indoor gatherings in various circumstances, including where it is for the purpose of a family visit to a care home (S10(b)(ii)). To make it as clear as possible, the Government has issued guidance which recognises that “maintaining some opportunities for visiting to take place is critical for supporting the health and wellbeing of residents and their relationships with friends and family.”
Those of us whose legal practice is predominantly in health and welfare law are continuously mindful of the detrimental impact of the restrictions on the emotional wellbeing of people who are already vulnerable.
We have seen many care home managers and staff undertake individualised risk assessments and be extremely creative to ensure that their residents’ wellbeing is maintained as well as it can be throughout this unprecedented public health emergency.
However, we have also seen numerous examples of those that are not and, in direct contravention of the legislation, regulations and guidance referred to, operate a blanket ban refusing contact between care home residents and their loved ones. We have also seen worrying cases where residents are threatened with eviction where their families raise reasonable concerns and polite challenges. It is anticipated that difficult cases are likely to result in litigation seeking to resolve disputes, redress the balance and, where appropriate, compensate the vulnerable person at the heart of the decision making process.
The Public Law and Human Rights Team at Irwin Mitchell has a national presence across our offices with solicitors specialising in health and welfare and human rights law. The co-authors of this article are Katy Cowans and Yogi Amin.
If a privately owned care home makes a decision that is unlawful or unreasonable, a claim can be issued in a court seeking an injunction order, a declaration that the decision is unlawful and, on occasion, damages.