Care home visiting and your legal rights

Be aware of your legal rights

Care home visits came under the media spotlight during the pandemic with some homes setting up visiting pods to keep residents safe from Covid while others banned visitors altogether due to older and disabled people being most at risk. Since the pandemic, care homes have been open to visitors again in line with government and NHS guidance.

However families claim that some care homes are still restricting visits. In some cases relatives can disagree with staff on how their loved one is being cared for and this can escalate to a level where they end up getting banned from the care home. This can be extremely distressing for everyone involved.

When this happens it is vital to be aware of the legal rights of both the resident and their friends and family as well as the care home.

Does a care home resident have the legal right to visits from family and friends?

• Care home residents have the same consumer rights to see their family and friends. This is regardless of whether they are paying for their own care or if their local authority is paying.

• The care home is their home and if a resident wants to see their family and friends, it is important the staff help facilitate this and give them as much privacy as is possible. If the care home fails to do this, the provider may be in breach of regulations in the Health and Social Care Act 2008.

• If the care home is funded or partially funded by the NHS or the local authority and it stops a resident seeing visitors, it may be breaching the resident’s rights under Article 8 of the European Convention of Human Rights. If the care provider is breaching the regulations, the care regulator such as CQC, the Care Inspectorate or Care Inspectorate Wales can take action.

• Article 8 of the European Convention on Human Rights, which is part of the Human Rights Act 1998 gives everyone including care home residents the right to respect for their private life and their family life. Article 2 also gives people the right to life and Article 5 gives the right to liberty and security. However these rights need to be balanced against the rights of other people. So in some situations care homes would have the right to refuse or restrict visitors.

• In England, the government has made it a legal right for care home residents to have visitors. Care home visits are a fundamental standard in CQC (Care Quality Commission) regulations.

Can a care home ban a visitor?

Emotions can run high when it comes to leaving your relative in the care of others. Family can feel guilt that they are not caring for them at home and they obviously love them and want the best for them. If families feel they are not being listened to, things can escalate and words can be said in anger.

On the flip side, care staff can react angrily if they feel they are being criticised and relations can break down between the families of the resident and the staff.

• Some care homes do have clauses written into the care home resident’s contract about visitors’ behaviour, so have a good read of the contract as that will list the rules that visitor have to comply with such as not bringing in prohibited items and not being abusive.

• Regulators such as the CQC do have standards on visiting and this includes respecting the relationship between a resident and their family and if the family or the resident does make a complaint against the care home, it is important they are not discriminated against or victimised. It is up to the care regulator in each country to enforce this.

• Care homes are responsible for protecting all of their residents as well as the staff so if the care home believes the visitor is a risk to residents and/or staff, they may need to place conditions on visits.

• However they should also consider the impact the ban is having on your relative or friend.

• Care homes should only ban a visitor as a last resort.

How do you challenge a ban on care home visiting

• If you are banned by the care home from visiting a family member or friend, the first step is to try and talk to the care home manager and resolve any conflict that has arisen.

• Care homes will have a formal complaint procedure in place. If an informal chat doesn’t work, this should be your next step.

• If this doesn’t work and the care home is being paid for by the local authority, you can try challenging the decision by contacting their adult social services team. You need to tell them why you think the reason for the ban is wrong and explain how the visiting ban impacts on the care home resident.

• If your relative is self-funding you can take your case to the Local Government and Social Care Ombudsman.

• None of the care regulators, CQC, Care Inspectorate Wales, Care Inspectorate Scotland and RQIA investigate individual complaints or resolve disagreements between people and the care homes. But if you do feel there is an issue over care and support at the home, you can contact the care regulator for your particularly country as this could help with their inspection planning.

Can you be banned from visiting a care home resident if you hold Power of Attorney?

• If you have a legal role, such as being Power of Attorney for Health and Welfare as the care home resident no longer has capacity, then the care home should not put in place any restrictions that prevent you from being able to carry out this role.

If you hold Power of Attorney, can you stop others visiting?

• Yes if you hold Power of Attorney for Health and Welfare, you can stop named individuals from visiting a care home resident but only if there is a genuine safety issue.

• If you believe the person acting as Power of Attorney is not acting in the best interests of the care home resident you can object to the registration of the Power of Attorney. You will need to fill in an objection form and send it to the Court of Protection. You will need to provide evidence to back up your objection.

• You can find out more about Lasting Power of Attorney here.

What are your rights to visits if the care home resident is on end of life care?

• Government guidance says visits to a care home resident who is receiving end of life care should always be encouraged. This is the case even if there is an infection outbreak in the care home.

• NICE defines end of life being if the person looks likely to die in the next 12 months.

Care home residents in England have legal right to visitors

After campaigning by families of care home residents, the government has given care home residents in England the legal right to have visitors.

The legislation is for residents in care homes as well as patients in hospital so visits are a fundamental standard of care and have parity with having access to food and drink and properly qualified staff. 

It is a new fundamental standard in CQC regulations.

If CQC finds a care home or hospital is breaching the regulations, it can use civil enforcement powers. It has a clear mandate to check care providers are enabling visiting so residents maintain vital connections with family and friends.

The visiting regulations apply to care homes for older people as well as those of working age. It also applies to hospice settings providing end of life care and hospitals.

Care home residents in Scotland have rights to see visitors even during infection outbreaks

Two new Health and Social Care Standards for care homes were introduced in 2022. These gave care home residents in Scotland the right to see and receive care from their loved ones, thanks to Anne’s Law, which is being put into practice by the Scottish Government.

Care home residents can also name one or more individuals who can directly help meet their care needs.

Anne’s Law was based on a campaign by Natasha Hamilton, the daughter of 63-year-old care home resident Anne Duke. Anne Duke was a former care home therapist who had been cut off from her family during the pandemic while living with early onset dementia. She did not see her family for months and died in November 2021.

The Health and Social Care Standards set out what people should expect when receiving health and social care in Scotland.

The two new Standards are:

• If I am an adult living in a care home and restrictions to routine visiting are needed to prevent infection, I can nominate relatives/friends (and substitutes) to visit me. My nominated relatives/friends will be supported by the care home to see me in person day-to-day and to be directly involved in providing my care and support if that is what I want.

• If I am an adult living in a care home, I can nominate relatives/friends (and substitutes), who will be supported by the care home to be directly involved in providing my day-to-day care and support if that is what I want.

It is Scotland’s Care Inspectorate’s job to check whether the standards are being met when registering and inspecting care homes.

Restrictions on care home visits in Wales must be proportionate to infection risk

Care homes in Wales must have space for residents to meet visitors privately which is separate from their bedroom.

If care homes take the decision to limit the number of visitors because of an infection such as Covid in the home, it must be proportionate to the risk to residents and staff.

Residents have the right to regular contact with family and friends.

Huge impact of visits can be seen in this video of care home visits after Lockdown

Further reading

Do I still need to wear a face mask to visit a care home? 2022 – carehome.co.uk advice

What if there is no Power of Attorney? – carehome.co.uk advice

How to complain about a care home – carehome.co.uk advice