Engagement and involvement
Following public consultation on their policy intent in 2023, the government has amended the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to introduce a new Regulation 9A: Visiting and accompanying in care homes, hospitals and hospices.
The new regulation sets out people’s rights to receive visits, within and outside of care homes, hospitals and hospices, and accompaniment for appointments in those settings, enshrining it in a new fundamental standard. As this is a new regulation, CQC must issue guidance about compliance with the requirements of this new regulation, and we have a duty to consult on that guidance before it is published.
We carried out this Equality Impact Assessment (EIA) before, during and following our consultation process, to check any impacts and mitigations of our consultation on equality groups. The regulation itself was subject to the Department of Health and Social Care’s own, separate EIA.
We wanted to ensure that the public, stakeholders, people that use services and the organisations that represent them, were able to share their views, experiences and suggestions as part the visiting guidance consultation.
We also know that restrictions to visiting can have a disproportionately negative effect on certain public groups.
Therefore, in addition to sharing the consultation widely among all stakeholders, we carried out supplementary focused engagement with groups that were:
- identified in the EIA as being less likely to access the consultation
- identified as a group that may be disproportionately impacted by implementation of the standards
- defined by CQC as a group more likely to experience poor care.
These included:
- older people
- people with lived experience of a mental health condition
- people with a disability, impairment, or long-term health condition
- families and carers of people in a residential health or social care setting
- people from ethnic minority backgrounds
- people with a range of other protected characteristics.
We also considered people with accessibility needs and people who prefer or need to access non-digital ways to give feedback and put processes in place to enable them to respond to the consultation.
Our additional engagement activity included holding focus groups or workshops and engaging with organisations that represent or support people who use services, to help us ensure the consultation reached the groups identified above. Research Works Limited (RWL) were commissioned to conduct the focus groups.
Impact and mitigation
Specific equality issues by protected characteristics
Age
Impact
Older people may be less likely to be able to access the consultation on a digital platform.
The standard itself should have a positive impact on all groups, and particularly on older people who are more likely to use health and social care services compared to other age groups. This includes older people who had previously been negatively affected by visiting restrictions, especially during the pandemic.
We know that some providers used a blanket ban approach, and this was inconsistent across the country. This would impact on human rights of older people, particularly those who lacked the capacity to make their own decisions.
Mitigation
We held focus groups and targeted older people to ensure their views were captured. Research Works Limited (RWL) were commissioned to conduct the focus groups. A summary of RWL’s findings is provided in the final consultation analysis report. We approached voluntary and community sector organisations that represent and support older people to share the guidance and consultation and encouraged them to respond to the consultation as an organisation and to share the consultation with their networks.
People who prefer or need to access non-digital ways to give feedback were able to phone our contact centre.
Carers
Impact
No negative impact was identified for this specific group before the consultation, but this was monitored and reviewed during, and as a result of, the consultation.
The standard itself should have a positive impact on carers, as it will enable them to visit the people that they care for, without the negative impact of unnecessary visiting restrictions.
However, acknowledging that some carers may also fall into the other under-represented groups identified in this EIA, we undertook additional engagement activity to ensure their views were captured.
Mitigation
We held focus groups with carers to ensure their views were captured. We commissioned Research Works Limited (RWL) to carry out the focus groups. RWL’s findings were shared with our analysis company and a summary is provided in their final report.
We approached voluntary and community sector organisations that represent and support carers to share the guidance and consultation and encouraged them to respond to the consultation as an organisation and to share the consultation with their networks.
Disability
Impact
People who have a disability may not be able to access the consultation due to access needs; for example, people with a learning disability, some autistic people, people with a visual impairment or anyone needing support to access the digital platform.
They were therefore at risk of not having the opportunity to say how providers will apply the new standard in practice.
The standard itself should have a positive impact on all groups, and particularly on people with a disability, who had previously been negatively impacted by visiting restrictions, especially during the pandemic.
We know that some providers used a blanket ban approach, and this was inconsistent across the country. This would impact on the human rights of people with a disability or long-term condition.
Mitigation
We held focus groups and targeted people with a disability, impairment or long-term health condition to ensure their views were captured. Research Works Limited (RWL) were commissioned to conduct the focus groups. A summary of RWL’s findings is provided in the final report. An easy read version of the consultation was developed and published alongside the online form so that people with a learning disability and their supporters and others could give their feedback. The majority of responses were submitted via the webform, but handwritten Easy Read responses and emails/letters were also accepted. We received 12 easy read responses and five email responses.
People who prefer, or need to access non-digital ways, to give feedback were able to phone our contact centre. No such requests were made, and we did not receive any requests for the consultation questions in an alternative format.
We approached voluntary and community sector organisations that represent and support people with a disability, impairment or long-term health condition to share the guidance and consultation and encouraged them to respond to the consultation as an organisation and to share the consultation with their networks.
Out of 553 responses to the consultation, 120 people identified as having a disability.
Race/ethnicity
Impact
There is a lot of research that suggests people from ethnic minority backgrounds experience discrimination when using health and social care services. For example, focus group participants from ethnic minority backgrounds told us that they lost confidence in hospitals during their experience of trying to visit relatives in hospital during COVID-19 restrictions. People working in the health and case sector can also experience discrimination in the workplace.
The new regulation should have a positive impact on people from ethnic minority groups. Visits from family and friends may be particularly important, for example to maintain community connections and enable people to talk in their first language and for family members to provide informal advocacy where their relative is in a minority in a care setting.
However, people may experience barriers and racial discrimination; for example, some people may have less trust in, or awareness of, our regulatory work and this formal consultation. Some people who speak English as a second language may have less access to the consultation and what it means for them because of the way information is written.
They are therefore at risk of not having the opportunity to voice their say in how providers will apply the new standard in practice.
Mitigation
We invited people to request the consultation in alternative formats, including language translations. We did not receive any requests for alternative formats.
When we reviewed who was responding to our online form partway through our consultation period, we saw that people from ethnic minority groups were under-represented.
To address this, we commissioned Research Works Limited (RWL) to hold a focus group with people from ethnic minority backgrounds (Black Caribbean, White and Black Caribbean, White and Black African, Bangladeshi and Indian people). A summary of the group’s findings is provided in the final analysis report.
The ethnicity of respondents was as follows, 429 people identified as white, 17 as Asian or Asian British, 33 as Black British, 14 as being in other ethnic minority groups.
Sex
Impact
No negative impact was identified for women or for men in relation to the consultation and implementation of the standard, but this was monitored and reviewed during, and as a result of, the consultation.
Mitigation
No further impact identified.
Gender reassignment
Impact
No negative was impact identified in terms of the consultation for trans or non-binary people, but this was monitored and reviewed during, and as a result of, the consultation.
Visits from family and friends may be particularly important for trans and non-binary people, for example to maintain community connections and enable people to provide informal advocacy where the person is in a minority in the care setting.
Mitigation
No further impact identified.
Marriage and civil partnership
Impact
No negative impact identified for this specific group, in relation to the consultation and implementation of the standard, but this was monitored and reviewed during, and as a result of, the consultation.
Mitigation
No further impact identified.
Pregnancy and maternity
Impact
No negative impact was identified in terms of the consultation for this specific group, but this was monitored and reviewed during, and as a result of, the consultation.
Mitigation
No further impact identified.
Religion and belief
Impact
No negative impact was identified in terms of the consultation for people with different religions and beliefs, but this was monitored and reviewed during, and as a result of, the consultation.
The regulation should have a positive impact. For example, during the pandemic there was a ban on hospital visiting and this could have had an impact on people’s human rights, especially for people at the end of their life. This will have had different impacts on different faith groups. This may have had an impact on the decisions of families to contact the NHS about health concerns for their loved ones, particularly for older relatives and particularly where their relative did not speak English.
Mitigation
Not further impact identified.
Sexual orientation
Impact
No negative impact was identified in terms of the consultation for lesbian, gay and bisexual people, but this was monitored and reviewed during, and as a result of, the consultation.
Visits from family and friends may be particularly important for lesbian, gay and bisexual people, for example to maintain community connections and enable friends and family to provide informal advocacy where the person is in a minority in a care setting.
Mitigation
No further impact identified.
Socio-economic
Impact
Digital literacy and deprivation can affect people’s experience in relation to accessing the consultation on a digital platform. People on low incomes or with no or limited access to the internet are therefore at risk of not having the opportunity to voice their say in how providers will apply the new standard in practice.
Mitigation
People who prefer or need to access non-digital ways to give feedback were able to phone our contact centre.
We also carried out supplementary focused engagement with groups, of people aged 32-70 years old, including carers and people with disabilities, impairments and long-term health conditions.
Intersectionality
Impact
Impact on groups listed above is likely to be exacerbated where intersectionality occurs. For example, older people who have a disability.
Mitigation
Planned actions for this group is listed in individual groups above. We also held a focus group with people aged 32-70 years old, people from ethnic minority backgrounds, carers, and people with disabilities, impairments and long-term health conditions.
Human rights
Impact
Visiting and accompaniment engage human rights in several ways, including in relation to articles 2, 5, 8 and14 of the European Convention on Human Rights.
A human rights-based approach to decision making can support providers in enabling visiting and accompaniment and when considering restrictions in complex situations. This includes considering the appropriate balance between a person’s right to private and family life, independence, choice and control, risk and safety. Providers must consider whether restrictions are lawful, legitimate and proportionate.
Providers must make sure they take people's mental capacity into account. They must make sure that either the person, or someone lawfully acting on their behalf, is involved in planning, managing and reviewing their care and treatment. This includes their right to having visitors and being accompanied to appointments. Providers must make sure decisions are made by those with the legal authority or responsibility to do so. They must work within the requirements of the Mental Capacity Act 2005. The Act includes a duty to consult others, such as families, unpaid carers and advocates, where practicable and appropriate.
Providers must also work within the requirements of the Human Rights Act 1998 and the Equality Act 2010, including the Public Sector Equality Duty, where applicable, and make reasonable adjustments.
Health and social care services may need to restrict access to family and friends in exceptional circumstances and in line with human rights law, with Article 8 of the European Convention on Human Rights. Article 8 is a qualified right, where interference is permissible if it is legal and for a legitimate aim. These aims include the protection of public order, health and morals and the rights and freedoms of others. So, a balance is required between the rights of the individual and the needs of another, or of the wider community. It must also be proportionate, meaning the least restrictive option.
We needed to ensure a rights-based approach was reflected in the guidance and while some respondents to the consultation were positive about the focus on a person-centred and human rights-based approach in the guidance, we acknowledge that some felt this could be strengthened further. While we do not regulate or enforce against the Human Rights Act 1998, CQC is a human rights-based regulator, and this approach underpins all our regulatory activities. Care that does not respect and promote people's human rights is neither safe nor high quality, and this approach to regulation will continue into our assessment of providers against this new Regulation 9A.
Mitigation
The guidance on the regulation means that it is more likely that any visiting restrictions will align with human rights principles and comply with human rights requirements. This is because providers must put in place any measures or precautions necessary and proportionate to ensure that visiting and accompaniment can happen safely while using human rights decision-making principles, through the tests of whether the restriction is lawful, for a legitimate aim and is proportionate.
In response to comments we received during the consultation, we have strengthened the introduction to the guidance to be clearer about what we mean by human rights-based decision making and to also make specific reference to providers’ existing requirements under the Human Rights Act 1998 and Equality Act 2010. Throughout the guidance we have changed some wording to align more closely with human rights-based language. You can find more information about our updated human rights approach to regulation on our website.