Campaigners threaten legal action over visits out for care home residents

Campaigners are threatening the Government with legal action over guidance which they claim imposes a “blanket ban” on elderly care home residents making visits to family and friends at Christmas and beyond.

John’s Campaign argues that two pieces of Covid-19 advice for the public on forming Christmas “bubbles”, and visits out of care homes, breach equality and human rights laws and legal requirements for care homes to make individual decisions for every resident who wants to make a trip out.

It says it is considering a challenge over the guidance, with lawyers sending a pre-action letter – the step before formal legal proceedings begin – to the Department for Health and Social Care.

The letter claims both pieces of guidance “impose blanket bans on visits out of care homes (over the Christmas period and otherwise) for care home residents over working age”.

It adds the group believes “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”.

The group notes the Government’s Christmas guidance, published last week, says spending time with others outside of a care home increases the risk of exposure to Covid-19 for both the resident concerned, and others, when they return, and therefore “visits out of care homes should only be considered for care home residents of working age”.

The advice also says: “Some residents of working age may be able to leave their care home to form a bubble, in agreement with the home and subject to individual risk assessments”.

Separate guidance on visits out of care homes says the risks of coronavirus are “usually significantly greater” for older people than those of working age, and “as such, visits out of care homes should only be considered for care home residents of working age”, with trips out for older people considered in “exceptional circumstances” such as to visit someone who is at the end of their life.

John’s Campaign founders Julia Jones and Nicci Gerrard (pictured with John) said: “The Government has been promising guidance on visits out of care homes since July – whether a trip to the family home, a walk by the river or a drive in the family car. This has not been forthcoming.

“People living in care homes have been effectively imprisoned and denied these simple pleasures, with the sanction of two weeks in isolation should they step outside the gates.

“Now they are told that only those under 65 may be considered eligible for the freedoms enjoyed routinely by the rest of the population.

“And if they do accept an invitation, they must be confined to their rooms for 14 days on return. This is outrageous.

“Will care home staff who have enjoyed Christmas with their families be self-isolating for 14 days before they return to work?

“It’s time the Government and other authorities began treating these most senior citizens and their families as adults able to make their own sensible and well-informed assessments of risk and benefit and support them in so doing.”

John’s Campaign says it is challenging both pieces of guidance on the grounds they misstate the law, and breach the Equality Act 2010, the Human Rights Act 1988 and the Care Act 2014, which says care providers must consider residents’ specific personal needs.

It claims the advice creates an “unacceptable risk of illegality” because it makes it more likely care home providers will breach their legal obligation to carry out individual risk assessments when deciding if it is appropriate for a resident to make a visit.

The group says it is asking the Government to change the guidance to make it clear that care homes must make individual decisions about residents, regardless of their age, and clarification on a 14-day self-isolation rule for residents returning from a visit out.

Tessa Gregory, of law firm Leigh Day, which is representing the group, said: “John’s Campaign once again considers the Government has published care home guidance which unlawfully ignores the requirement for individual risk assessments and applies arbitrary restrictions, this time on visits out for residents.

“Our client hopes the Government will urgently amend the relevant guidance to take a more balanced, lawful and compassionate approach.”

John’s Campaign, founded in 2014, campaigns for the rights of those affected by dementia.

It previously threatened legal action over Government guidance on visits to care homes, withdrawing a bid for a challenge over guidance on family visiting loved ones after the advice was changed.

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