Balancing the Risk of COVID-19 with Visits to Residents

A care home is a complex environment – meeting the holistic needs of residents and providing a safe working environment for staff is challenging. The impact of COVID-19 on care homes, including on visits to residents, has been widely reported, including, in some cases, no visits taking place causing hardship to residents and those wishing to visit them.

Matters may appear to have been made more complex following the release of new government guidance to be used whilst national restrictions are in place from 5th November 2020. This guidance can be found at https://www.gov.uk/government/publications/visiting-care-homes- during-coronavirus. It has been suggested in some quarters that the guidance could lead to what has been called a ‘post code lottery’ if some Directors of Health ‘permit’ visits to residents in care homes whilst others don’t.

No guidance changes the duty of employers to comply with health and safety legislation.

So what are the fundamentals of health and safety legalisation for care homes?

The Health and Safety at Work Act 1974 sets out the framework for managing workplace health and safety in the UK. The Act sets out the duties of employers to ensure, so far as is reasonably practicable, the health, safety and welfare of their employees, clients, visitors and members of the public.

The Management of Health and Safety at Work Regulations 1999 make more explicit what employers are required to do to manage health and safety under the Act. A key provision of the 1999 regulations is a suitable and sufficient risk assessment and to record the significant findings of the risk assessment.

COVID-19 risk assessments will need to look at what activities or situations might cause a risk of transmission of the virus, identify who could be at risk, consider what actions could be taken to remove the risks, or, if this is not possible, to consider what actions could be taken control the risk.

One of the areas of activity that care homes will be required to assess, particularly with the approach of Christmas, is visits to residents in the home. The generality of the above applies but will have to be particularised for visits. For example, do particular areas of the home/rooms require a risk assessment; does an individual resident require a risk assessment; does a particular activity eg entering and leaving the home require a risk assessment? The Health and Safety Executive provides some general advice eg on social distancing and hand hygiene, but this does not displace the obligation of employers to undertake suitable and sufficient risk assessments.

All risk assessments, including those for visits, are to be monitored and records made to assess their effectiveness and be regularly reviewed and updated.

Every care home is a unique environment and each resident them- selves unique whose needs may change; all risk assessments will have to be undertaken and reviewed bearing these factors in mind together with the continuing and rapid developments in COVID-19.

Mary-Teresa Deignan is a barrister at Temple Garden Chambers