Government guidance on visiting for care home residents

This is a summary of the key law and guidance relevant to visiting in care homes in England

This summary covers:

• Government guidance on visiting in and out of care homes

• Laws relevant to visiting, setting out legal rights and standards

The government guidance should be read in the context of these legal standards and duties. This document is not legal advice.

1. Government guidance on visits in and out of care homes

The Government guidance on visiting in care homes was withdrawn on 23 December 2023. This was replaced with guidance on infection prevention and control (updated on 31 January 2024). The emphasis of the guidance is now on acute respiratory infections including COVID rather than solely focusing on COVID.

The guidance covers a wide range of issues and contains a section on visiting arrangements in care homes.

There is no specific equivalent government guidance for other types of outbreaks such as norovirus that restricts visiting.

Overall approach

The guidance says that “contact with relatives and friends is fundamental to care home residents’ health and wellbeing and visiting should be encouraged. There should not normally be any restrictions to visits into the care home and visits out should be encouraged as much as possible in line with resident’s preference”. The guidance emphasises that the right to private and family life is protected by law (Article 8 of the Human Rights Act – more info on this in the next section). Even in the event of an outbreak, or where a resident has confirmed acute respiratory infection, including COVID, every resident should continue to have access to one visitor at a time as a minimum.

End of life

End of life visits are no longer specifically referred to in the guidance, but should always be supported.

Visits out

The restrictions on visits out of a care home were dropped earlier in 2022. The current guidance states “visits out should be encouraged as much as possible in line with resident’s preferences. Care home residents should not usually be asked to avoid contact with others or to take a COVID-19 test following visits out of the care home.”

If a resident has an acute respiratory infection, including COVID, they should take account of the general public advice  when considering activities in and out of the care home. 

Precautions

The guidance no longer asks visitors to wear a face mask. There may be circumstances where masks may be recommended, such as where the resident has COVID, or prefers visitors to wear masks or if the home is in an outbreak. However, the guidance says this “should be based on local assessments, considering any distress caused to residents or barriers to communication from the use of PPE”

The guidance states that visitors who feel unwell should not enter the care home. Visitors with respiratory infections should follow the associated guidance to the general public. This includes stating that “those with positive test for COVID should try to stay at home and avoid contact with other people for 5 days after the day you took your test” and so, should avoid the care home for 5 days after they first test positive or once they feel better, which it ever is the longer.

Outbreaks

The latest guidance amends the definition of an outbreak of acute respiratory infections in care homes, including COVID, and is risk based.  The guidance states “2 or more linked care home residents develop symptoms of a respiratory infection within 5 days of each other, the care home should undertake a risk assessment as soon as possible. The risk assessment should help to determine if there is an outbreak and if control measures are needed.”  For instance, if the 2 or more residents are suffering from different respiratory illnesses or not been transmitted in the home, this should not be considered an outbreak.  The assessment can be carried out by the home themselves or by the local Health Protection Team (HPT).

 If an outbreak is declared, testing will take place and consideration of ‘further measures may include’:

• ‘proportionate changes to visiting’, but it states that “during outbreaks, one visitor at a time should always be able to visit each resident inside the care home as a minimum” This must be flexible to allow for accompanying people who need support or for children to visit.

• ‘proportionate reductions or postponement of communal activities’

• ‘proportionate reductions in admissions’

• restriction of staff movement within the home or agency staff between homes

The guidance states all changes must be proportionate, risk based, consider the resident’s wellbeing and the care home’s legal obligations. Additional measures may be advised where the risk assessment indicates a variant ‘with vaccine escape potential’ or other concerns.

Lifting of outbreak measures

“Outbreak control measures can be lifted 5 days after the onset of symptoms in the most recent symptomatic resident. A local risk assessment should underpin the decision to lift outbreak control measures.”

Other relevant info

Vaccination is not required for visitors, but the guidance reminds  carers that they are eligible for vaccinations and that it is one of the most important defences against COVID and flu viruses.

2. Relevant law and regulations

Decisions about visiting engage residents’ legal rights including:

• right to family life, which covers maintaining relationships

• right to private life, which covers physical and mental well-being, their autonomy to make their own choices and private, unsupervised contact with their relatives / friends / advocate / other professionals.

Both are protected in UK law by Article 8 of the Human Rights Act. Whilst these rights can be restricted, including for the protection of health or the rights of others, a restriction must be proportionate. The onus is on the service provider to justify their interference with these rights, by demonstrating that the decision they have taken is the least restrictive option for that person, having considered the alternatives. For example, if the provider is only offering limited visiting during outbreaks due to lack of time available in a dedicated meeting room, how are they demonstrating that is a proportionate decision? Has the provider carried out individual assessments and considered other options, such as allowing visits in the resident’s own room which would remove this restriction?

Where a person is prevented from leaving a care home, the right to liberty (protected by Article 5 of the Human Rights Act) requires that this is set out in law, with a process for challenging the restriction of movement (such as a Deprivation of Liberty authorisation).

The duty under the Human Rights Act to respect and protect rights lies not only on public authorities like the government and local authorities, but also on care homes where the care is arranged or paid for (in any part) by the local authority (see section 73 of the Care Act). If your care was arranged and is paid for entirely by you, let a public authority know about your concerns about your rights – like your local authority or the Care Quality Commission. They have a duty to act where they know rights are at risk.

Care homes must not apply blanket approaches, instead they must carry out individual risk assessments about visiting. This is required by the Human Rights Act (above) and the Equality Act. The latter prohibits indirect discrimination and applies to all care home residents regardless of how their care was arranged or is funded. Blanket decisions will not be appropriate as homes are required to consider individual needs and apply different rules for different residents depending on their individual circumstances.

Where a resident is assessed as lacking capacity to decide about a visit, providers will need to ensure they are adhering to the Mental Capacity Act and acting in the resident’s best interests and imposing the least restrictive option. The principle of well-being underpinning the Care Act also continues to apply.

The regulator, the Care Quality Commission (CQC), has set out their expectation that care homes ensure visiting is unrestricted and will follow up in instances where they are made aware that this may not be happening. This could lead to enforcement action.

CQC’s Regulation 12 (in the Health and Social Care Act 2008 (Regulated Activities) Regulations) requires providers, when considering risk, to act reasonably and adhere to recognised guidance and the principles of the Mental Capacity Act where relevant. Regulation 10 requires them to provide care and treatment in a way that ensures people's dignity and treats them with respect at all times. Regulation 9 requires the provision of care to be person-centred and include individuals in the planning process where they are able to do so, with support if necessary, linking to the Mental Capacity Act to ensure family/friends/advocates are included in the process where relevant.