Whilst the Government guidance on care home visiting and testing may be designed to assist providers with practical aspects of dealing with the coronavirus outbreak, we are already seeing situations which the guidance does not specifically address. One particular concern, which we think providers may start to see become more prevalent, is the refusal of residents and their families to follow the official guidance and local policy. This is likely to become more of an issue as the pandemic continues and the public become fatigued with lockdowns and other restrictions on their day to day lives.

For many providers who care for individuals with dementia or learning difficulties, the challenges in protecting those people and others around them can be a real challenge.

With the recent introduction of ‘whole home testing’ in the care sector, the question of whether providers must take part in the testing programme is unclear. Some providers have decided not to take part, in which case, we would advise that a reasoned decision should be recorded and appropriate risk assessments should be in place. Other providers wish to participate but seemingly there is a lack of available tests following the withdrawal of Randox tests. Subject to availability of tests, most providers will take part in the ‘whole home testing’ process but may face challenges such as people refusing to take part.

If you feel that a resident may lack capacity to make a decision about being tested for coronavirus, a robust capacity assessment must be carried out by an appropriate person, to assess whether the service user has capacity to make the decision whether or not to be tested. If the assessment determines that the resident has capacity to make that decision, the resident can make their own decision. If a resident does not have capacity, providers should identify whether anybody holds power or attorney for health and welfare or whether a Deputy has been appointed for health and welfare decisions (which is rare). Government guidance states that consideration should be given as to whether a specific measure would be in the individual’s best interests and it may be appropriate to arrange a ‘Best Interests’ meeting with the relevant stakeholders to determine the issue at hand. Ultimately, if a decision cannot be reached, an application to the Court of Protection may be necessary.

Where residents refuse to be tested as part of ‘whole home testing’, this will be difficult to enforce. A COVID-19 test is considered an interference with bodily integrity and people have the right to refuse. If a resident refuses to be tested, providers should explore the reasons for the refusal and provide reassurance to the resident and their family. If the resident continues to refuse, providers must ensure they take other appropriate measures to protect residents in the home. It is essential to follow local Public Health England advice.

As some restrictions start to ease, care homes may enable family members to visit their loved ones again. It is important to ensure appropriate infection control measures are in place during visiting. Recent Government guidance states that, where possible, visits to a resident should be limited to a single constant visitor. One issue, which some providers may encounter, is the refusal of visitors to follow Government guidance and home policy. If visitors refuse to comply, providers need to be mindful about the way this is handled. Some of the restrictions and requirements that may be implemented as part of protecting care home residents may have human rights implications. For example, if you prevent a resident from receiving visits from their family because they refuse to wear a face covering during visiting, this may amount to an interference with their rights under Article 8 of the Human Rights Act 1998. In certain situations, it may be necessary to restrict visitors, in line with Government guidance and public health advice. However, it is important to be cautious when implementing other requirements and restrictions to visiting. Such actions can, of course, also potentially result in adverse publicity if relatives are unhappy with decisions made, and need to be handled tactfully.

Complex and sensitive questions may arise when caring for people who lack capacity, particularly when dealing with the practicalities of the current outbreak. If you have any queries regarding mental capacity, testing and visiting arrangements, or if you have any concerns arising out of the pandemic, our experienced health and social care team are at hand to provide you with practical legal advice and solutions. You can find more details here and can contact us on 01202 786135 or online.enquiries@LA-law.com.