Judge says care home residents in England are legally allowed visitors

Mr Justice Hayden said courts were concerned about the impact on elderly people of lockdowns. Photograph: Rosemary Roberts/Alamy Stock Photo

A senior judge has said friends and family can legally visit their loved ones in care homes, in an apparent challenge to recent government policy that has in effect banned routine visits in areas of high Covid-19 infection.

Mr Justice Hayden, vice-president of the court of protection which makes decisions for people who lack mental capacity, said courts are concerned about the impact on elderly people of lockdowns. He has circulated a memo that sets out his analysis that regulations do “permit contact with relatives” and friends and visits are “lawful”.

He was responding to guidance from the Department of Health and Social Care (DHSC) last month telling thousands of care homes in England that visiting should be stopped in areas with tier 2 and tier 3 lock down restrictions, apart from in exceptional circumstances such as the end of life.

It triggered blanket prohibitions by some councils and sparked anguish from relatives who warn a lack of contact is leading to misery and early death in some cases. Within a week, Gloucestershire county council told care homes in its area to stop visits until next spring.

With the England-wide lockdown starting on Thursday, care home providers, families and groups including Age UK and Alzheimer’s Society, have called on ministers to this time make clearer provisions for visiting. The high court judge’s comments, issued on 15 October, could boost their cause.

Hayden said exceptions in the existing regulations mean contact with residents staying in care homes is lawful for close family members and friends. He said the court of protection was concerned about “the impact the present arrangements may have on elderly people living in care homes,” citing their suffering.

Relatives and residents have become increasingly despairing at a lack of access, with some feeling their loved ones are in effect “imprisoned”. A promise by the care minister Helen Whately on 13 October to start testing relatives to allow them to visit has not been fulfilled.

Whately had told parliament that selected close relatives could be treated like key workers and allowed into care homes saying: “I am planning for us to launch a pilot on that shortly.” But no pilot has been launched. DHSC officials say they are “considering plans” with and promise further details “in due course”. Rapid turnaround saliva testing has been mooted by NHS test and trace as one way of allowing more care home visits and is being trialled in Liverpool, where the mayor, Joe Anderson, on Tuesday said it would be used in care homes.

“We can no longer stand by and watch the erosion of people’s human rights and the impact of isolation through the effective blanket bans on visiting in care homes,” said a statement co-ordinated by the National Care Forum ahead of MPs voting on Wednesday about new lockdown restrictions. NCF represents charitable care home providers and its call is backed by 60 care organisations, health charities and relatives groups.

“We know that isolation caused by restrictions on visits from loved ones is intrinsically harmful and we have heard over and again the extreme anguish that this is causing. After eight months of visitor restrictions – we cannot continue like this – there is simply not enough time for many of those living in care homes today to watch and wait.”

Blocks on care home visits were introduced in spring to reduce the spread of the virus into settings with highly vulnerable populations. More than 18,000 people have so far died from confirmed or suspected Covid-19 in UK care homes.

A spokesperson for the DHSC said: “We know limiting visits in care homes has been incredibly difficult for many families, but our first priority remains the prevention of infections to protect the lives of vulnerable residents.”

Some care residents have been in isolation since March triggering rising concern at the impact on their mental and physical health.

John’s Campaign, which lobbies for greater involvement of family and friends in care, has launched a legal claim over the government’s visiting policy which details harrowing cases of separation, according to filings seen by the Guardian.

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Judge says care home residents in England are legally allowed visitors