Draft for consultation - Regulation 9A: Visiting and accompaniment in care homes, hospitals and hospices

Guidance on 9A(1)

Regulation 9A(6)(a) defines ‘regulated activity’ for these purposes as all regulated activities except:

• personal care
• accommodation for persons who require treatment for substance misuse, and any detoxification services for substance misuse
• management of supply of blood and blood derived products
• transport services, triage and medical advice provided remotely

This regulation does not apply to anyone who is detained in a prison or similar institution to which the Prison Act applies. This regulation also does not apply to anyone detained under the Immigration Acts. However, the requirements of this regulation do apply if someone detained under these Acts is transferred to hospital and detained in that hospital under the Mental Health Act 1983.

This regulation also applies to hospitals, which are defined in Regulation 2.

Guidance on 9A(2)(a)

• Providers should support people who use their service to receive visits in person from people they want to see, when they want to see them, as far as reasonably possible. Staff should do all they can to make this possible and easy to arrange.

Guidance on 9A(2)(b)

• This part of the regulation aims to support people’s social contact, to maintain community connections and help them have different experiences.
• Providers should not impose unreasonable rules that could effectively act as a restriction when people return after leaving the care home premises for any reason. For example, unreasonably long periods of isolation which may discourage a resident from deciding to go out.
• If providers already have contractual arrangements that involve paying for additional staff to support care home residents to go out, this regulation does not change these arrangements.
• Discussions and decisions about visits out should be supported by individual risk assessments and good care planning.

Guidance on 9A(2)(c)

• If someone attends a hospital or hospice for care or treatment that does not need them to stay in overnight, that service should let the person bring someone with them to those premises. This includes day care treatment and outpatient appointments. This is so people do not have to attend the appointment alone and can help them feel more comfortable and safer when they attend their appointment. It may also help with communication and sharing information where this might otherwise be difficult.

Guidance on 9A(2)(a)(b)(c)

• Providers must (unless there are exceptional circumstances):
  • support people using their service to receive visits
  • not discourage people from taking visits outside the care home
  • support people using their service to be accompanied at the premises when attending appointments.
• ‘Visit’ means seeing someone in person. The provider should assume visits and accompaniment are possible unless they are confident there are exceptional circumstances. Where a risk has been identified we expect providers to implement appropriate precautions to enable a visit to happen safely, rather than prevent visiting altogether. For example, this may include a visit where the visitors wear a face mask if there is a significant risk of infection.
• If providers are considering taking any precautions or making full restrictions to visiting or accompaniment they should apply human rights-based decision making and risk assessment to the individual situation. This should always follow the preferences of the person using the service and their assessed needs. Human rights-based decision making ensures any restriction to a person’s right to receive visitors has a legitimate aim and is necessary and proportionate. This means that there is the least restriction possible to achieve the aim.
• Providers should work together with the person using the service, and those who wish to visit or accompany them, to determine if there is an exceptional circumstance that justifies restricting visiting, discouraging visits out, or accompanying them to an appointment. This could be to protect the person using the service, other people using the service, staff or people visiting, where there is a risk to their health, safety or welfare. For example, if it is necessary to prevent the spread of an infectious disease or because the visit may cause danger, harm or unnecessary distress to someone.
• When determining whether there are exceptional circumstances, providers should base their assessment on the health, safety and welfare of people using the service or other people involved. They should base their decisions on the needs of people using their service and any identified risks.
• If there is a need for additional precautions to be put in place, or a full restriction, the provider should apply the most proportionate and least restrictive option. This should be the option least likely to interfere with the person's right to see their visitors when and how they want. For example, if there is a legitimate reason for restricting visits in person because of a risk to people's health, safety or wellbeing, providers should consider ways to mitigate those risks. This could be by implementing additional health and safety measures, or using technology such as video or phone calls to maintain contact until visits in person can be resumed. Options such as these should not be used as alternatives to in-person visiting, where in-person visits are possible and preferable.
• Providers should consider every individual decision as a separate case. We do not expect providers to apply blanket decisions or long-term restrictions. They should review decisions to restrict visiting regularly by working together with the people involved. They should also review these decisions when the circumstances change.
• Providers must keep a record of any assessment and decisions on visiting. They should be able to demonstrate:
  • how they have made these decisions and who has been involved
  • whether they have implemented any mitigations to make sure they have used the least restrictive, most reasonable option
  • when they have reviewed the restrictions.
• As part of this, providers should consider any requirements under Regulation 17: Good governance.
• Providers should always support visits in person to someone who is receiving care at the end of their life. This applies to all types of premises covered by this regulation, including care homes, hospitals and hospices. This guidance is based on the NHS definition of ‘end of life care’. “People are considered to be approaching the end of life when they are likely to die within the next 12 months, although this is not always possible to predict. This includes people whose death is imminent, as well as people who:

1. have an advanced incurable condition, such as cancer, dementia or motor neurone disease
2. are generally frail and have co-existing conditions that mean they are expected to die within 12 months
3. have existing conditions if they are at risk of dying from a sudden crisis in their condition
4. have a life-threatening acute condition caused by a sudden catastrophic event, such as an accident or stroke”.

Guidance on 9A(3)(a)(b)

• Providers should enable a person using their service to receive visitors in a way that meets their preferences, so far as reasonably practicable. This is unless it is necessary and proportionate to make alternative arrangements to meet a legitimate aim.

Guidance on 9A(3)(c)(e)

• If providers cannot meet the person’s preferences for a visit, they should consult with the person and their family, friends or advocates and offer them as many options as possible. This is so the person can have as much control as possible over the arrangements.

Guidance on 9A(4)

• Providers should take all reasonable steps to support people using their service to receive visits, go on visits or to be accompanied when attending appointments that do not require an overnight stay, unless this is against the person’s wishes or, if they lack mental capacity, it is not in their best interests. This is because this regulation is subject to court orders and specific legislation that take precedence if there is a conflict (the Mental Health Act 1983, the Mental Capacity Act 2006, and high security psychiatric service provisions in the NHS Act 2006).
• There may be times when the wishes and preferences of the person using the service are not the same as those of people who want to visit them. Providers should always give priority to the rights and preferences of people using their service.

Guidance on 9A(5)

• (a) is the Mental Health Act 1983
• (b) is the Mental Capacity Act 2005
• (c) is the National Health Services Act 2006