In the second of a three-part series from 39 Essex Chambers on the Government’s Adult Social Care: COVID-19 Winter Plan 2020-2021, Steve Broach looks at the implications for the right to respect for private and family life.
Throughout the Covid-19 pandemic, as set out in Siân Davies' article on the issues for local authorities arising out of the Winter Plan, there has been a significant tension between the imperative to protect the health of 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. Where these measures are adopted or supported by public authorities, this will in turn breach section 6 of the Human Rights Act 1998, which requires public bodies to act in accordance with ECHR rights.
The Winter Plan continues the English government’s approach of treating decisions relating to restrictions on family and private life rights as a matter of local discretion. For instance, the ‘key actions’ section of the Plan includes the following: ‘local authority directors of public health should give a regular assessment of whether visiting care homes is likely to be appropriate within their local authority, or within local wards, taking into account the wider risk environment and immediately move to stop visiting if an area becomes an ‘area of intervention’, except in exceptional circumstances such as end of life.’
Importantly, the Plan states that ‘local authorities and NHS organizations should continue to put co-production at the heart of decision- making, involving people who receive health and care services, their families, and carers.’ This involvement should extend to the production of the winter plan which is required for each local area; the Plan states ‘local authorities must put in place their own winter plans, building on existing planning, including local outbreak plans, in the context of planning for the end of the transition period, and write to DHSC to confirm they have done this by 31 October 2020.’
As such, it appears that it is a matter for local areas whether care home visits can continue generally through the winter of 2020-21, unless an area becomes an ‘area of intervention’ when visits should only be permitted at end of life or in other exceptional circumstances (the Plan later clarifies that end of life visits should be permitted ‘In all cases’). The Plan is silent as to what the approach should be to visits in other settings, most obviously supported living settings. However, it can reasonably be assumed that the government expects a similar approach to be adopted to that in care homes.
The Plan goes on to state that ‘care home providers should develop a policy for limited visits (if appropriate), in line with up-to-date guidance from their relevant Director of Public Health and based on dynamic risk assessments which consider the vulnerability of residents. This should include both whether their residents’ needs make them particularly clinically vulnerable to COVID-19 and whether their residents’ needs make visits particularly important.’ Again, significant discretion is given to individual providers, who will need to ensure that any restrictions on visiting placed on their residents and family members are proportionate. Providers are informed that ‘Social workers can assist with individual risk assessments, for visits, and can advise on decision- making where the person in question lacks capacity to make the decision themselves.’ However this may prove to be a rather optimistic statement, given the limited capacity of many local authority adult social care teams.
There is a discrete section of the Plan, headed ‘Visiting guidance’. This section reiterates ‘for avoidance of doubt’ that ‘any area listed by Public Health England’s surveillance report as an ‘area of intervention’ should immediately move to stop visiting, except in exceptional circumstances’ which would presumably include end of life visits as referred to above. However outside areas of intervention, the Plan is more permissive, stating ‘we continue to encourage providers to find innovative ways of allowing safe contact between residents and their family members’.
The Plan cross refers to separate visiting guidance for care homes: https://www.gov.uk/ government/publications/visiting-care-homes- during-coronavirus/update-on-policies-for-visiting- arrangements-in-care-homes and supported living: https://www.gov.uk/ government/publications/supported-living- services-during-coronavirus-covid-19/covid-19- guidance-for-supported-living
Care home providers are also given the following specific guidance on visiting in the Plan:
‘ensure the appropriate PPE is always worn and used correctly – which in this situation is an appropriate form of protective face covering (this may include a surgical face mask where specific care needs align to close contact care) and good hand hygiene for all visitors
limit visitors to a single constant visitor wherever possible, with an absolute maximum of two constant visitors per resident to limit risk of disease transmission
supervise visitors at all times to ensure that social distancing and infection prevention and control measures are adhered to
wherever possible visits should take place outside, or in a well-ventilated room, for example with windows and doors open where safe to do so
immediately cease visiting if advised by their respective director of public health that it is unsafe’
It would perhaps have been helpful if the Plan acknowledged the human rights implications of restrictions on visiting for service users and their family members, and the need for such measures to be proportionate to the risks they are addressing in order to avoid a human rights breach. However it is undoubtedly welcome that the Plan does not provide any support for blanket bans on visiting in care homes, outside ‘areas of intervention’. Still less is there any support in the Plan for local areas or providers imposing restrictions on service users leaving their care setting, otherwise than in accordance with the regulations on guidance on self-isolation as applies to the general population. It remains unclear though why a national Plan like this is focused solely on care homes, ignoring the reality that many social care service users (particularly younger people) will be living in supported living arrangements.
Finally, the private life rights of many disabled people (including their ‘psychological integrity’ or well-being) have also been negatively affected by the closure of many services. As such it is welcome that the Plan states (twice!) that ‘local authorities should work with social care services to re-open safely, in particular, day services or respite services. Where people who use those services can no longer access them in a way that meets their needs, local authorities should work with them to identify alternative arrangements.'
See also: Department for Health and Social Care Winter Guidance: issues for local authorities - in the first article in the series Siân Davies provides an overview of the Department of Health and Social Care (non-statutory) guidance issued on 18 September 2020.