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 “Better Care In My Hands” report highlights the importance of an individual’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, and 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 given to the potential for a claim under Article 8 of the European Convention on Human Rights which, having been incorporated into the Human Rights Act as long ago as 1998, will be unaffected by Brexit. It is worth noting that 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, 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.
Healys LLP offers an excellent private client service, and can provide independent advice upon setting up an LPA or indeed a deputyship or Healthcare deputy. Our Private Client team works closely with the Court of Protection.
If a care home provider is concerned as to whether or not they are in conflict or potential breach of the regulations, they should 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 relating to a visitor who has an 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 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.