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The government must tread carefully to ensure care home measures don’t breach human rights

Andrew Will and his mother Jean Glenndenning arrive for a Christmas Day visit with her husband Jeff Glenndenning at Aspen Hill Village care home in Hunslet, Leeds, 25 December 2020 | PA Images

3 min read

With Parliament’s Joint Committee on Human Rights warning against blanket bans on care home visits, discrimination against the elderly and disabled people is back on the agenda in lockdown

There was a collective sigh of relief in Westminster on Monday when Matt Hancock announced that all care home residents and members of staff had been offered a Covid vaccination. It was “an emotional moment”, Hancock said, as the vaccine roll-out “was about protecting the most vulnerable”.

While the government was celebrating this important milestone, somewhere in the background, Harriet Harman was preparing an unusual counter-move to protect the human rights of care home residents: namely, the right to family life in the form of visits.

On Wednesday, the Joint Committee on Human Rights (JCHR) published a fully drafted set of regulations which would allow care home residents to receive visitors once again. If implemented, a designated visitor would be treated as a member of the resident’s care team for the purpose of visits and tests.  

Bans on care home visits have attracted controversy for many months, with memorable scenes of elderly and disabled residents being “busted out” for Christmas. The Joint Committee has now found that any blanket ban amounts to a breach of human rights under Article 8 of the European Convention on Human Rights (the right to family life).The Committee are therefore pressing the health secretary for immediate action so that care home visits can finally resume.

It’s not just visits that have raised questions around the human rights of older people in the last 11 months. In March and April last year, there was uproar when rumours circulated that blanket Do Not Attempt Cardiopulmonary Resuscitation (DNACPR) orders had been placed on some care homes, preventing healthcare teams from performing emergency CPR on patients who went into cardiac or respiratory arrest.

The Care Quality Commission (CQC) published their early interim findings of an ongoing investigation into DNACPRs in December 2020. No evidence has been found that blanket decisions were made; however, pressure, confusion, and unclear guidance meant that inappropriate DNACPR orders were repeatedly placed without the consent of families.

Questions around DNACPR orders and concerns regarding the safety of adult social care has added weight to the suggestion that the care of older people has been an afterthought throughout the pandemic.

While political pressure did force the government to change its guidance ahead of the second lockdown last November, allowing “safe” care home visits, the JCHR and supporters are mounting pressure to push these changes one step further. Labour’s shadow minister for social care, Liz Kendall, has pledged her party’s support of the drafted regulations, saying the legislation should be brought forward as a matter of urgency.

It remains to be seen how the Opposition could in actuality force a vote on the secondary legislation drafted by the Joint Committee, as the SI was not laid by the Government. One course of action could be that Labour use an Opposition Day as means of setting the parliamentary agenda and tabling a motion in support of the regulations. Although Conservative MPs have by-and-large abstained from recent Opposition Day votes to avoid political infighting, a debate would still allow members from across the House to indicate their views on the JCHR’s suggested legislation.

While the government have reiterated that visits can take place in Covid-secure settings, Matt Hancock and the minister for care, Helen Whately have not responded directly to the proposed regulations to ensure no care home can impose a blanket ban. How long that silence lasts may depend on how much longer loved ones remain separated this time around. 

Alexandra Ming is Dods political consulting specialising in equalities

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