21st February 2019

Visiting rights in care homes and unwelcome guests

Visiting rights in care homes and unwelcome guests

The Care Quality Commission has set out guidance for care home operators as to best policy concerning the rights of residents to receive visitors.

The report “better care in my hands” high lights the importance of people’s family and friends being able to help plan their care and support as much as they want them to. The commission refers to this as being a person centred care process. Care providers should empower a resident to be able to receive guests if they want to, a failure to do so could amount to a breach of a number of regulations in the Health and social Care Act 2008, against which the CQC can take enforcement action. Consideration should also be had to the potential for a claim under Article * of the ECHR which despite Brexit has been incorporated into the Human Rights Act as long ago as 1998. Obviously this is not an absolute right and a case by case approach will be adopted, especially where such rights have to be balanced against other rights and the rights of others.

A key consideration for care home operators will concern the mental capacity of a resident. There is an overarching duty of care to act in the best interests of a resident. It is therefore very important that where an operator has concerns as to the capacity of a resident to make balanced and independent decisions than they should consider the need for a Lasting Power of Attorney to be in place or seek guidance through the appointment of a court deputy.

Healy’s LLP offer an excellent private client service, and can provide independent advice upon setting up a LPA or indeed a deputyship or Healthcare deputy. The Department works closely with the Court of protection.

Where a care home provider is concerned as to whether or not they are in conflict or potential breach of the regulations, then please contact Paul Keown who can provide guidance on the provisions of the regulations and how to demonstrate compliance or justification for the approach adopted. If a care home operator has concerns where a visitor has a LPA, then it is important to exercise the powers of safeguarding and raise a complaint with the Office of the Public Guardian. Some providers have raised concerns that they are no reluctant to do so as they fear being in breach of the provisions of the GDPR, however it is important to remember that the local authorities safeguarding team will provide oversight.

Article by Healys, NCA's Specialist Solicitors.

Healys Care team specialises in giving advice and assistance on a wide range of issues that affect those that are in the business of delivering care. Our specialist care services cover: Employment Law and HR advice, regulatory matters and dispute resolution, financing of care homes, property aspects for care homes, care fee planning/personal finance of residents and Immigration advice.
Our specialist solicitors will give members advice on a wide range of issues at no cost for the initial telephone consultation. For a referral, please call us on 01634 716615.