Written evidence from Mr Andrew Todd (HCS0040)

1. This submission responds to the Committee’s question, “What human rights issues need to be addressed in care settings in England, beyond the immediate concerns arising from the Covid-19 pandemic?”

2.              Evidence indicates that the retaliatory denial of visits to care home residents, following complaints about care standards and in violation of residents’ Article 8 rights, is an increasingly common form of institutional abuse.[1]

3.              Complaint processes can be slow and/or ineffective, whilst any future regulatory action by the CQC, as well as being uncertain in its eventual effect, will not necessarily prevent damage to a resident’s well-being in the meantime.

4.              Existing legal options - namely proceedings in the Court of Protection, a claim by or on behalf of a resident under the Human Rights Act 1998, or an application for judicial review - will not be appropriate and practicable in every case.

5.              The lack of any general, direct and timely means of redress for carers or relatives grants a significant measure of impunity to those care homes which do not operate to adequate professional standards of care or integrity.

6.              Whilst providers owe residents a common law duty of care, there is a clear need for an additional statutory duty on the part of care homes towards carers and relatives, to promote the health and well-being of residents by (for example) facilitating regular supportive contact with those close to them, as far as is reasonably practicable. 

7.              Such a duty would need to confer an explicit right of private legal action on carers and relatives for breaches, allowing (say) the County Court to grant an early injunction requiring the restoration of contact.

8.              The draft provision below would have some commonalities with the draft SI recommended in the Committee’s April 2021 Report on Care homes: Visiting restrictions during the covid-19 pandemic (paras. 66-70 & Annex).

Duty of facilitating support to care home residents

(1)       The Health and Social Care Act 2008 is amended as follows.

(2)       After section 148 insert—

“148A               Duty of facilitating support to care home residents   

(1)      This section applies to a registered service provider (“S”) carrying on a regulated activity in a care home, where the regulated activity involves providing a service to a person (“P”).

(2)      R has a duty to take such care as is in all the circumstances reasonable to ensure that any person (“C”) engaged in caring for P is enabled to keep in touch with and provide appropriate care and support to P.

(3)      For the purposes of subsection (2), appropriate care and support includes (but is not limited to) monitoring, promoting and safeguarding P’s health and well-being, including P’s emotional and social well-being.[2]

(4)      In discharging the duty under subsection (2), S shall have due regard to S’s obligations under the Fundamental Standards for care and treatment in regulations 8 to 20A of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.[3]

(5)      Where breach by S of the duty under subsection (2) in relation to C is causing, has caused or presents a substantial risk of causing significant detriment to the health or well-being of P, civil proceedings may be brought by P and/or C, subject to the defences and other incidents applying to actions for breach of statutory duty.[4]

(6)      In proceedings under subsection (3), the court may —

(a)     grant an injunction to require the breach referred to in subsection (5) to be remedied and/or any recurrence of the breach to be restrained, and/or

(b)     award damages in respect of significant detriment to P’s health or well-being, loss or distress suffered by P, and/or loss or distress suffered by C.

(7)      In this section—

“care home” has the meaning given by section 8(3) of the Care Act 2014.

“registered service provider” means a person registered under Chapter 2 as a service provider.

“regulated activity” has the meaning given in section 8.

“well-being” has the meaning given by section 1(2) of the Care Act 2014.

Explanatory statement

This new Clause would oblige care homes to ensure that carers are allowed the necessary access to residents. The obligation would be directly enforceable in the courts by either residents or carers, who would not be forced to rely on any discretionary and delayed regulatory action by the CQC. The Clause is designed to target restrictions in retaliation for complaints - an increasingly common practice by care homes - or which are excessive in relation to public health requirements during (say) a pandemic.

02/11/2021