None of us could ever have envisaged the catastrophic effects of being unable to see or touch our loved ones – certainly not for the protracted period of time many have had to endure. Loved ones entrusted into care settings such as residential homes and the majority of nursing have been there to there to receive the care and support they require for their medical health and social needs. The Pandemic has resulted in lockdowns which means many individuals have been deprived of their right to family and private life.
Within the community throughout the COVID-19 Pandemic there has been a significant tension between the imperative to protect the health and social care users and the social care workforce and the need to respect the family life and private life rights of those who might be subject to protective restrictions. At certain points in the Pandemic, some local areas and institutions have implemented “blanket bans” on visiting in a way which is likely to be disproportionate and therefore contrary to Article 8 of the European Convention on Human Rights (ECHR).
The COVID-19 Winter Plan 2020-2021 is guidance aimed at Local Authorities, NHS organisations, care providers and the Care Quality Commission (CQC). For Local Authorities it should be read alongside the Adult Social Care Action Plan (April 2020) and updated Visiting Guidance (21st September 2020) and ADASS Guidance (Sept 2020).
The Government’s three overarching priorities for adult social care are described as:
- Ensuring everyone who needs care and support can get high quality, timely and safe care throughout the winter period.
- Protecting people who need care, support or safeguards, the social care workforce and carers from infections including COVID-19.
- Making sure that people who need care, support or safeguards remain connected to essential services and their loves ones whilst protecting individuals from infections including COVID-19.
The key issue for local authorities is the need to manage a potential conflict in terms of the wellbeing of both care home residents and those in the community with care and support needs as regards prevention of COVID-19, and the detrimental impact that prolonged periods without community access and visits from family and friends may have on their mental health.
The Visiting Guidance addresses actions to Local Authorities, care providers and the NHS as regards the forms (pre-discharge testing, infection control measures in care homes, limiting staff movement between settings and PPE). On the latter, the Department of Health and Social Care states that it will distribute tablet devices to care homes that are in greatest need, so that care home staff can access remote health consultants for the people in their care. This will also support care home residents to stay connected with their families and loved ones. Technical and user support will be provided to set up the devices for use by care providers.
On the issue of visits to those in care homes the Winter Guidance refers to the (now updated) Visiting Guidance which requires a risk assessment based approach to family members attending care homes. Overall the Winter Guidance is clear that the “first priority” remains to prevent infections in care homes and protect staff and residents.
The Guidance does not engage with the effects of this on the duty of a Local Authority, in exercising its functions under the Care Act 2014, to promote the “wellbeing” of an individual. Wellbeing includes physical and mental health and emotional wellbeing, control by the individual over day-to-day life, participation in work, education, training or recreation, domestic, family and personal relationship and the individual’s contribution to society [s.1(2)].
Under s.1(3), in exercising a function under this part in the care of an individual, a local authority must have regard to the matters which include:
- The importance of beginning with the assumption that the individual is best-placed to judge the individual’s wellbeing,
- The individual’s views, wishes and feelings and beliefs,
- The importance of preventing or delaying the development of needs for care and support and the importance of reducing needs of either kind that already exist,
- The need to ensure that decisions about the individual are made having regard to all of the individual’s circumstances,
- The importance of achieving a balance between the individual’s wellbeing and that of any friends or relations who are involved in caring for the individual, and
- The need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercising of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.
Many of these wellbeing functions are “in play” where an individual is in a care home or community setting and is restricted from access to friends, family, community reserves and leisure/recreation activities. It is not difficult to see how those restrictions are capable of exacerbating existing mental and physical ill health.
Whatever the circumstance, my advice is to maintain positive dialogues with the care home settings, the managers and the professionals. There is a glimmer of hope that a vaccine will bring about a relaxation and at some point in the coming months of life, returning to some sort of normality.