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Care home visits guidance in England is unlawful, charity claims

Campaigners threaten legal action over suffering caused by lack of visits to most vulnerable

And old person with a carer

The charity suggests that people with dementia have suffered disproportionately from the isolation caused by lack of family visits. Photograph: Murdo MacLeod/The Guardian

Campaigners working to persuade the government to reinstate care home visits have challenged the legality of recent guidance that they say has spread chaos and caused suffering to some of the country’s most vulnerable people.

Julia Jones and Nicci Gerrard, the co-founders of John’s Campaign, argue that a fundamental violation of human rights has been taking place in care homes across England for the past six weeks.

They say the guidance issued by the Department of Health and Social Care on 22 July, advising care homes on creating their own visiting policies with an aim of reducing the risk of coronavirus transmission and preventing future outbreaks, has led to homes implementing blanket bans on visits.

In a pre-action protocol letter to the health and social care secretary, Matt Hancock, the charity argues that residents with dementia, a disability under the Equality Act, have suffered disproportionately from isolation caused by the lack of family visits.

“In the six weeks since the government guidance on care homes visiting was published, we have been inundated with harrowing stories from families who are either unable to visit their loved ones in care homes or have visits which are so restricted that they cause more distress than they offer comfort,” said Jones.

The charity, which is crowdfunding its legal case and is represented by Leigh Day solicitors, says the guidance breaches the law by failing to put any requirement on care homes to carry out individualised risk and needs assessments before refusing visits.

The letter calls on Hancock to urgently amend the guidance or publish new advice that underscores the legal obligation for care homes to make decisions about visits depending on each resident’s particular disability and needs.

“For months now we have been hearing stories of suffering,” said Jones. “Only as a last resort have we taken this step. Time is precious, every day counts to those people in care homes and to their family, for whom enforced separation has brought damage, bewilderment and anguish.”

Tessa Gregory, a partner at Leigh Day, said: “Our client has for months been seeking to highlight the risk of mental and physical deterioration faced by those with dementia if they are unable to see their loved ones.

“John’s Campaign believes the current guidance on visits to care homes is encouraging blanket bans as it fails to accurately express the law and fails to advise care home on their equality obligations towards people in their care with dementia.

“Individualised risk and needs assessments are key to ensuring the rights of those with dementia are properly protected in accordance with the law.”

Gregory said that if a substantive response to the letter was not received by the end of September, a claim for a judicial review of the guidance would be issued in the high court.

A DHSC spokesperson said: “We know that limiting visits in care homes has been difficult for many families and residents who want to see their loved ones, but our first priority is to prevent infections in care homes, and this means that visiting policy should still be restricted with alternatives sought wherever possible. Visiting policies should be tailored by the individual care home and taking into account local risks in their area.”

‘I just want to hold my mum again’

Suzanne Emmett

“My 80-year-old mother went into a care home in January. She’s got dementia and multiple health conditions and is very vulnerable. Our family were visiting her daily but then the care home closed its doors on 12 March and we haven’t seen her since.

Suzanne Emmett

Suzanne Emmett.

“My mum had a fall in May. Her mental state has deteriorated over the past six months in ways that, from a distance, I can only fear for: she now sits in her chair like a baby and has a dishevelled look that would mortify her if she knew. But I can’t straighten her clothes or comb her hair because I can’t reach out to her.

“The care home staff are kind but my mum’s family are her memories and her voice. We’re her life.

“The government says it’s thrown a protective ring around our care homes but carers are moving freely around the community after their shifts, as is their right. But if it’s safe for them to care for residents despite such free movement, why can’t families?

“I’m prepared to take unpaid leave for 14 days then do a test. I’m prepared to take any precautions the home asks me to. I just want to see my mum and hold her again.”

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