Care homes banning visitors to keep residents safe could face litigation over human rights breach, warns barrister

A rise in COVID-19 among the general population and in care homes has led to some residential settings banning all non-essential visitors, however a barrister has warned that although fear of legal liability has led them to lockdown the care home, they could just as “easily end up being sued for not allowing visitors in”.

The Department for Health and Social Care (DHSC) wrote to all care providers in England last week warning that care homes are seeing a rise in COVID-19 cases.

The number of care homes affected last week was 43, which equates to 0.2 per cent of care homes. There are currently 17,743 care homes in the UK.

In response to the letter from the DHSC, some care homes have decided to ban all visitors and due to infections rising in certain areas, councils in Newcastle, Gateshead and Sunderland took the decision to close all of their care homes to visitors.

Lawyers acting for the dementia campaign group John's Campaign are currently seeking a judicial review of the government's coronavirus guidance issued in July for care homes in England. They want the guidance changed so indoor visits are allowed as well as more than one visitor. John’s Campaign also wants the families of people with dementia to be seen as 'key workers' so they are given the same access to visit family members as care staff.

Rob Harland, a barrister at 5 Essex Court in Temple, London, questions whether the judicial review will help the situation, or will it just lead to greater uncertainty whilst the guidance is under challenge?

He says: “On 9 September 2020, John’s Campaign reported that they had sent a letter before action to the Secretary of State for Health and Social Care, with the intention of judicially reviewing the guidance. The government would normally have 14 days to respond. That response could concede that the guidance is unlawful but (on the assumption that it does not) John’s Campaign will need to decide whether to issue a challenge (one issue might be whether they have raised sufficient funds via the Crowdfunding website that they have set up).

“If they do, and the court does not expedite the hearing, the legal proceedings could in theory take months to conclude. Even if the Campaign is successful, the most likely outcome of the claim will be that the guidance is ‘quashed’ – that is to say that the Department of Health will be told to go back to the drawing board and draft new guidance (with at least the steer from the Court as to why the previous guidance was wrong).”

In the meantime care homes are still expected to follow the current guidance

He warns that in the meantime, and unless and until the Department issues new guidance, care home providers and local authorities will be expected to follow the current guidance, which will retain its force.

“It would be foolhardy to disregard the guidance altogether on the basis that it is under challenge and may be scrapped,” said Mr Harland.

“Nonetheless, that does not mean that care homes should ignore this news,” he adds.

“The challenge that John’s Campaign has raised includes claims under the Human Rights Act 1998 and the Equality Act 2010. In particular, it will likely be argued by them in due course that the government guidance places too much emphasis on the communal risks posed by COVID-19, and that it fails to give sufficient respect to residents’ family life with their loved ones (that is to say, breaches Article 8 of the European Convention on Human Rights) or treats them in a discriminatory way.

“The net effect (they will say) is that vulnerable residents are being wholly (and wholly disproportionately) deprived of important contact with their families throughout this crisis. It has even been suggested that the challenge will include an allegation that the guidance has breached the right to life (that is to say, Article 2 of the European Convention on Human Rights).

"Since care providers and local authorities are themselves likely to fall under the provisions of the Human Rights Act and the Equality Act, similar arguments (if they are right) could also be brought to bear on them, since whenever they exercise their discretion under the guidance to restrict or forbid visits, they are also affecting an individual’s right to family life.

“Further, the fact that the Department of Health might find itself in court in this case is a timely reminder that the risk of litigation runs both ways: those who stress a (hitherto untested) legal risk of being sued for allowing COVID-19 to spread in the care home community might easily end up being sued for not allowing visitors in to that community,” says Mr Harland.

Courts will be 'reluctant to criticise hard decisions taken on imperfect evidence'

He believes that in many ways, none of the above is likely to change the practice of many care homes.

“This suggestion - that care home providers who are considering whether to allow visits will have to weigh up the risk posed by COVID-19 on the one hand, against the family life of their residents on the other - will come as no surprise to those who have agonised over such decisions throughout the crisis.

“They do not need a lawyer to tell them that both matter. Further, no one wants to see care home providers hit by litigation whilst they struggle to combat a devastating disease. Care homes will retain a discretion over whom they allow to visit and courts are likely to be reluctant to criticise what everyone recognises to be hard decisions taken on imperfect evidence.

“Finally, human rights law (and particularly Article 8) dislikes blanket decisions, and is more likely to expect decision makers to weight up the facts of each case on a case by case basis. If the courts end up handing down further guidance, it may well be to the effect that providers and local authorities should be alert to the specific facts of the case before them, that they will need to keep an eye on the proportionality of more onerous restrictions as the COVID-19 risks go up and down, and they will need to remember the human rights of their residents.

"Again, many providers will not need a lawyer to tell them all of that," added Mr Harland.