Press release shared from Leigh Day:
John’s Campaign, which has campaigned for the rights of families and care homes residents throughout the Covid-19 pandemic, has launched a legal challenge to a blanket ban on visits out of care homes by residents aged over 65 and the requirement for those who are permitted to leave the care home to self-isolate for 14 days on their return.
The ban and 14 day self-isolation requirement are part of the latest guidance issued to care homes by the Department of Health and Social Care (DHSC) during the pandemic.
“Visits out of care homes” was updated on 8 March 2021 and imposes a blanket ban on visits out of care homes for care home residents over working age. It also requires anyone who is permitted a visit out to then self-isolate for 14 days afterwards, which is particularly punishing for vulnerable individuals who have already spent months away from their loved ones.
It says visits out of care homes should only be considered for care home residents of working age while current restrictions apply. Visits out for older people should be supported in exceptional circumstances, such as to visit a friend or relative at the end of their life but in any circumstance self-isolation for 14 days afterwards is mandated, despite the relaxation of self-isolation rules in other contexts and the fact that testing and vaccinations have been widely rolled out in care homes.
In response, John’s Campaign, represented by Leigh Day solicitors, has sent a pre-action protocol letter to the DHSC to say that the imposition of a blanket ban, and the failure to communicate and ensure individualised risk assessments are taken for every resident who wishes to make a visit out, is unlawful.
Th letter also questions the requirement in the guidance for any resident who takes a visit out of a care home to self-isolate on return for 14 days. Since care homes now have rapid testing, designated visitors are permitted, residents are vaccinated, this is unnecessary, say John’s Campaign.
Individualised risk assessments, which take account of an individual resident’s specific characteristics and needs, regardless of their age, are necessary in all circumstances according to the Equality Act 2010, Human Rights Act 1998 and Care Act 2014 and should also inform decisions in relation to self-isolation requirements.
In their letter, John’s Campaign, led by Julia Jones and Nicci Gerrard, point out that the blanket ban means that an individual who is 64 but may suffer from conditions that make them particularly vulnerable to infection could have an individualised risk assessment, which would allow the care provider to consider the nature of the visit out being proposed and what precautions might be taken to minimize risk of infection. But an individual aged 66 who may be less vulnerable to infection could not take a trip out.
They also point out the mismatch between the country-wide progress on testing and vaccination and the strict self-isolation requirements which make visits out unattractive and punitive.
John’s Campaign’s several letters and threats of legal action to the DHSC over the course of the pandemic have resulted in care homes guidance being amended so that it makes clear that individualised risk assessments are required in all circumstances to inform decisions about visits by families to residents. In the same way, they are now asking the DHSC to bring updated guidance into line so that individualised risk assessments are held for all residents, regardless of age, for visits out and so that such visits are effectively enabled wherever possible.
Julia Jones said:
“Personally I am at a loss to understand how the basic right of a person living in a care home to make their own simple choices over a walk in the park, for instance, has been so comprehensively ignored – and denied – over the past 12 months.
“The 440,000 people living in care homes include some who moved in through their own volition, with full mental capacity, never guessing that this simple freedom, enjoyed by everyone else in the population – apart from prisoners – could so easily be denied them. Those who cannot make their own choices have relatives and friends who would normally be glad to take responsibility but have been excluded choices.
“Many will have spent the last year of their life necessarily confined to the few rooms of their accommodation. The stipulation that those who venture out should then be isolated for 14 days is almost ludicrous if it were not so unkind. We all know what damage isolation does to people, particularly those living with dementia and for this to be inflicted by people who are running in and out between the care home and the wider community every single day, is beyond bizarre.”
Nicci Gerrard said:
“It is extraordinary, unkind and entirely unacceptable that government guidance should seek to prevent anyone over the age of 64 leaving their care home for visits out. Care homes are not prisons, and people living in them should have the same rights as everyone else in society. What’s more, to make them self-isolate for 14 days if they do leave the care home is to cruelly continue the enforce separation from those they love that has blighted too many lives in the past year. John’s Campaign considers that a blanket ban on visits out is grossly discriminatory, harmful and wrong, and it is a matter of urgency that it is changed.”
John’s Campaign’s letter is supported by Helen Wildbore of the Relatives and Residents Association. She said:
“As the rest of the country enjoys the gradual easing of lockdown, older people in care have been left behind once again. Our helpline hears that residents feel abandoned and forgotten, having spent a year with their family and friends kept away, this discriminatory guidance continues to keep them locked in. With the average stay in a care home just two years, the guidance must be urgently amended so that the time older people have left can be spent as a life worth living, not in isolation.”
Leigh Day partner Tessa Gregory said:
“Care home residents and their families have suffered disproportionately through the pandemic both from the virus itself but also from enforced isolation. It is vital that as the rules are relaxed for the general population, care homes residents are not left behind. There is no reason, if appropriate precautions are taken, to prevent residents over working age from having much needed visits out and it also cannot be right that if residents do leave their homes they always have to always isolate for 14 days on their return.”