Last week a retired nurse, Ylenia Angeli, was arrested after she removed her 97-year-old mother from a care home before lockdown began. Ylenia had reportedly not seen her mother face-to-face for 9 months and was “pushed to breaking point” at the thought of not seeing her mother during a second lockdown over the winter. The police returned Ylenia’s mother to the home and Ylenia was released without further action.

Over the past nine months, since the beginning of the first lockdown in March, during human rights sessions, I have spoken to many upset and worried family members who do not know the next time they will be able to see their loved ones. National restrictions have meant that people living in places such as mental health inpatient units, care homes, assessment treatment units and in supported living have not been able to have visits from their family member and loved ones in the same way as pre-Covid. Some people have not seen their children, parents, siblings or loved one for almost nine months. This has had a massive impact on people living in place such as mental health inpatient units, care homes, assessment treatment units and in supported living.

From our work during the Covid pandemic we know about the real, every day effect these restrictions are having on people who access services, their family members and loved ones. In the first 6 months of lockdown, over 230 people across England, Scotland and Wales shared with us their experiences the human rights impact of the response to Covid. Of the people with care and support needs, families, friends and carers who provided evidence:

             

 

What does this have to do with human rights?

Under our Human Rights Act, public authorities have a legal duty act compatibly with our human rights in all they do (section 6, HRA). The duty also applies when a resident’s care is being funded or arranged by the NHS or a local authority. So in services such as care homes, inpatient units and supported living services (and the staff working for these services) must respect, protect and fulfil people’s human rights in their work, including service delivery, policies and decision-making.

Our relationships with our family members and loved ones are central to who we are, and to our wellbeing. This is recognised by human rights, the right to private life, family life home and correspondence which includes a right to ongoing contact with your family members when split up (here family members means the people you see as your family, it doesn’t have to be blood relatives).

This right is a non-absolute right. This means that in certain circumstances it can be limited or interfered with, for example when there is a need to do so to protect the person or others from harm. This means that when a decision is being made which will impact the right to private life, family life home and correspondence, those making the decision should go through this three-stage test:

  1. Is this decision lawful? There must be a law which allows this decision/ action to take place.
  2. Is this decision legitimate (necessary)? There must be a good reason for making this decision, such as for public safety or protecting the rights of other people, including other patients/residents and staff.
  3. Is this decision proportionate? Those making the decision must have thought about other things they could do, but there is no other way to protect you or other people. This means that all the different options available should be considered and the least restrictive one should be chosen.

Any time there is a decision to restrict visiting, it must pass this test and be lawful, legitimate and proportionate.

For example, a mum that attended one of our sessions in the summer told me that after challenging the visiting ban at the residential school where her son lives at, the school put up a gazebo in the grounds so that pupils could meet with their families there.

In some cases, the lack of contact with family members may start to impact other rights such as the right to be free from inhuman and degrading treatment. This right is an absolute right, which means it is never lawful for someone to be in a situation which amounts to inhuman and degrading treatment. This right protects you from treatment that causes intense physical or mental suffering, or causes you to feel fear or anguish or extreme humiliation. If we look at the reality of some situations people are facing such as people who are receiving end of life care or have dementia not having contact with their loved ones for 9 months, we are getting into the area of inhuman and degrading treatment. Once treatment becomes inhuman and degrading, the situation is unlawful, and action must be taken straight away.

 

Challenging visiting restrictions using human rights

Usually, blanket policies such a blanket no visit policy sets off alarm bells in terms of human rights. This is because it is incredibly unlikely that such a policy is going to be proportionate as an outright ban is not going to be the least restrictive option available. Especially as we are now facing the 9th month of the pandemic and are now going into winter with increased restrictions.

In order for a visiting restriction to be proportionate staff have considered all other options available and picked the least restrictive option. This means that services such as care homes, mental health inpatient units and in supported living services must ensure that they are providing Covid-secure opportunities for families and loved ones to meet. These opportunities must not discriminate. The right to be be free from discrimination is  used along with another right in the Human Rights Act, such as the right to ongoing contact with family members (under the right to private and family life, home and correspondence). Opportunities for people to meet with their family members and loved ones must meet equality duties and be adjusted to suit each individual. For example, using Zoom or Skype calls as an alternative to face to face meetings might not work for everyone.

Campaigns such as John’s campaign, a joint call to action from a coalition of over 60 organisations, researchers, professionals and allies representing relatives, carers and providers, brought together by the National Care Forum and protests from family members in Scotland, have resulted in a bit of movement in government guidance. With the Scottish, Welsh, Northern Irish and UK (for England) governments all recently publishing guidance around phasing in the re-introduction of visiting. These guidelines recognise the need to look for alternatives to enable families and loved ones to visit, safely and include practical measure that should be put in place to provide Covid-secure visiting. For example, the UK Government Guidance (England) refers to floor to ceiling screens, visiting pods, and window visits.

It is however important that Government Guidance is applied in a way that respects human rights. Certainly questions might be asked about some of the measures and the extent to which these meet that three-stage test, particularly the proportionality element. For example, many involve a barrier, albeit clear, but is this the most proportionate response? Can visiting be done in rooms with proper social distancing and PPE? What about additional discrimination issues to consider as well, how do screens and pods work for people with sensory or sight issues in care homes? Plus we’re now entering the winter months, how proportionate is it for loved ones to visit at a window? It is shocking, but sadly not surprising in BIHR’s experience, that the UK Government’s new Guidance for Care Homes and visiting in Covid-19 only makes passing reference to the Human Rights Act. So much more is needed to support care staff to make sure decisions about visiting are made in a rights-respecting way.  

 

Right2Vist Online Tool

Last month, the Right2Home campaign launched Right2Visit, an online tool which supports families or close friends having problems visiting a loved one who is autistic and/or has learning disabilities, using human rights. BIHR was involved in the testing of this tool.

This tool provides practical support for challenging visiting restrictions using human rights, including template letters.

 

Better decisions and policies are possible

Making decisions about people’s rights which balance risks and safety and arrive at a proportionate decision can make visits in care homes possible. That is certainly the approach being taken by Kepplegate Care Homes, and the quality assurance work being led by Adam Purnell, featured on this morning’s BBC Breakfast news. You can watch a clip from the coverage on Adam’s twitter feed here.