New regulations have now been laid before Parliament to embed the Department of Health and Social Care’s response to its consultation to make visiting a new fundamental standard. The regulations will come into force on 6th April 2024.
The Government recognises how important visiting is for people who access care and treatment, and that this should be considered a fundamental part of the provision of good care. Research shows that it plays an important role in maintaining good health and wellbeing for people living in care homes or attending hospitals or hospices, enabling them to maintain relationships.
The Regulations (The Health and Social Care Act 2008 (Regulated Activities) (Amendment) Regulations 2023) track through the commitments in the DHSC's response.
Regulation 2(2) inserts a new Regulation 9A into the 2014 Regulations. This will add visiting and accompanying in care homes, hospitals and hospices as a new fundamental standard for providers of relevant regulated activities. Providers who carry on relevant regulated activities will, unless there are exceptional circumstances, be required to facilitate visits for individuals who are receiving care or treatment in the course of the carrying on of those regulated activities in care homes, hospitals and hospices. In hospitals and hospices this also includes enabling a service user to be accompanied by another person to outpatient and diagnostic appointments or the emergency department.
The Explanatory Memorandum accompanying the Regulations sets out what is meant by "exceptional circumstances" at paragraph 6.5:
"Exceptional circumstances” will be assessed on the circumstances of each case and will carry its ordinary, restricted meaning as interpreted by cases such as R v Kelly [2000] 1 QB 198 “We must construe exceptional circumstances as an ordinary, familiar adjective and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional, a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely or normally encountered.” The Department considers that an example of an exceptional circumstance might be where a visit would pose a significant risk to the health, safety or wellbeing of a service user or an employee of the provider.
New regulation 9A(2) also sets out a requirement that the taking of ‘visits out’ out of a care home must not be discouraged (unless there are exceptional circumstances). The Explanatory Memorandum notes at paragraph 7.7:
“Though residents cannot legally be prevented from leaving care homes (except in certain cases such as where the person lacks the relevant capacity and is subject to the Deprivation of Liberty Safeguards), we understand that during the pandemic a range of restrictions were placed on residents wishing to leave the care home, particularly upon their return, and that these discouraged service users from taking visits out. The intention is that service users must not be discouraged from leaving the care home premises to support their wellbeing and participation in their community. In practice, this will mean, for example, that providers should not impose unreasonable rules on returning after a visit out that would discourage service users from taking a visit out and effectively act as a restriction.”
Of note, new Regulation 9A(4) makes it clear that a service user is not required to receive any visit, take a visit out of a care home, or be accompanied, if they do not wish to be. If a service user does not have capacity to consent, they are not required to receive a visit, or be accompanied, if it would not be in their best interests to do so.
CQC consultation on its visiting guidance
The regulator is consulting on its proposed guidance to help providers understand and meet the new fundamental standard on visiting and accompanying in care homes, hospitals and hospices and their roles and responsibilities under it.
Care providers and other stakeholders are invited to share their views on the draft guidance by 20 February. You can read the consultation here and share your feedback using on the online form.
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