Responding to our consultation on visiting and accompanying in care homes, hospitals and hospices

Our response: We note the high level of agreement that the guidance clarifies the requirements about facilitating visits and agree with the benefits suggested.

Our response: We will continue to use the term ‘exceptional circumstances’ because:

• the term itself is in the new regulation as drafted by government and cannot be changed by the guidance
• although some people suggested we give a list of examples, we do not want to ‘normalise’ what exceptional circumstances are by doing this. The circumstances should be exceptional to each individual case, and we cannot provide a typical response for each unique situation
• providers should work on the assumption that visits are possible in line with people’s preferences. Where necessary, providers should use human rights-based decision making to risk-assess individual situations to determine whether the circumstances are exceptional, requiring a restriction on visiting. This should be the least restrictive option.

Our response: We welcome respondents’ views about how to clarify the obligations on providers. We recognise that the regulation applies to a range of providers across the health and social care sector who will have individual considerations and people who use their services. Based on the feedback, we have changed the guidance to demonstrate that what one provider does to meet the regulation may look different to that of another and will be based on individual risk assessments.

Our response: We note the high level of agreement that the guidance clarifies the requirements about not discouraging visits, as well as people’s positive experiences of visits, while recognising the learning from the pandemic.

Our response: We acknowledge that some people may have misunderstood the aim of the regulation in relation to providers’ resourcing of some of the obligations. We have changed some of the wording in the guidance to give more clarity where the regulation does not create any new requirement on providers in terms of staffing or resource, beyond what providers may already have in place.

Our response: While most respondents felt the guidance was clear, we wish to respond to those who thought the guidance was unclear about who holds responsibility for keeping people safe and protected from abuse while they are out on visits away from their care home. The new fundamental standard does not place additional requirements on providers in this regard: it is about not making decisions or creating barriers that would discourage people from going out on a visit if they wanted to, or when it was in their best interests to do so.

The new regulation is to be implemented together with providers’ existing requirements to keep people safe and protected from abuse under regulations 12 and 13, which may involve separate policies and procedures as needed.

Our response: The government’s consultation on the new fundamental standard acknowledged the concerns about visiting restrictions in health and care settings for several years. It also recognised that the restrictions introduced in response to the COVID-19 pandemic exacerbated these concerns, and that it’s important to move forward and learn to ensure these restrictions cannot be commonplace again.

The new fundamental standard is intended to highlight the importance of visits for people using health and social care services. Visiting should only be restricted in exceptional circumstances, such as where a visit would pose a significant risk to the health, safety or welfare of the person using the service or other people on the premises.

The new standard helps providers understand the process for decision making about enabling visits in and out of care homes and gives us a clearer basis to clarify our expectations and take action where required, including using our civil enforcement powers to take action when it is necessary and proportionate to do so.

Our guidance makes it clear that providers should consider every individual decision as a separate case, and we have strengthened it to highlight that “Providers should not apply blanket decisions or long-term restrictions”.

Based on specific feedback from the consultation, we have added some new information in our guidance that further strengthens the message that providers should not make the process for taking a visit out difficult.

Our response: We fully acknowledge the great work and effort that health and social care services do to help facilitate visiting and accompaniment.

We also recognise that there are links between all the fundamental standards, below which care must never fall.

However, the response to the government’s consultation in 2023 clearly supported the proposal to introduce a new fundamental standard that providers must meet that would place a focus on visiting and being accompanied on appointments. We have a legal duty to issue guidance on compliance with the fundamental standards.

Added to this, we have received a high level of support for this guidance, and the belief that it will help to improve the wellbeing of people who use health and social care services.

Our response: We note the high level of agreement that the guidance clarifies the requirements about accompanying people and agree that improved accompaniment can be beneficial for wellbeing, comfort or reducing stress.

Our response: The aim of our guidance is to set out the new regulation in a clear way to help providers understand and implement it. From 6 April 2024, our inspection and assessment teams will assess whether providers across all sectors are following the regulation under our single assessment framework. We will highlight good practice and take action when providers breach the regulation using our civil enforcement powers. We will use our published enforcement policy and decision tree to make enforcement decisions.

Our response: We acknowledge that some people may have misunderstood the aim of the regulation in relation to transport to appointments. We have changed some of the wording in the guidance to give more clarity where the regulation does not create any new requirement on transport or other providers, beyond what may already be in place. The obligation here is on the provider hosting the appointment at the premises, not to the premises.

Our response: Our guidance sets out that providers of the appointment services should let people bring someone with them to support them.

This is about a person’s opportunity to have a loved one there for their comfort and support if they so choose. We have added an explanation in the guidance that it does not place an additional requirement on providers to supply staff to fulfil this role. We wish to highlight here that, where a person has any assessed care and treatment needs that require support from the provider during an appointment, this should be provided in the usual way and is not affected by the new regulation.

Our response: A minority of respondents raised the concern that family members may not be available to accompany their relative to appointments or that a family member may not be a responsible person to fulfil the role. While it is anticipated that a large proportion of people will be accompanied by family members, the guidance states the regulation also includes friends and advocates. Unless there are exceptional circumstances, the person using services can choose who they want to visit with or accompany them. If the person lacks capacity about this, a decision will be made that is in their best interests.

We recognise that exceptional circumstances may mean people, the provider and visitors have different views about visits and accompaniment. We have now highlighted in the guidance the importance of communication to keep everyone (as appropriate) involved and informed about the process and any restrictions.

Our response: In response to these other concerns:

• Our guidance on Regulation 9: Person-centred care makes it clear that “Assessments of people's care and treatment needs should include all their needs, including cultural needs.”
• We will promote the new regulation and final guidance with providers through our various communications channels. We have also carried out specific engagement sessions on the regulation jointly with the Department of Health and Social Care, targeted at hospitals, care homes and hospices.
• As we mention above, we have decided to not provide examples, as the circumstances should be exceptional to the individual case in hand, so we cannot provide a typical response for each different situation.

Our response: While noting that this is the lowest level of agreement across the questions, nearly three-quarters of people think that the guidance clarifies the requirements about meeting people’s preferences.

Our response: Although the majority of responses to our consultation say that our guidance provides clarity to the new regulation, we acknowledge that some respondents have asked us to be more specific, including providing examples. As we have said above, we have avoided giving examples as we believe that each person’s situation should be treated individually, following an assessment of their needs and preferences.

We have, however, strengthened the guidance to now say that providers must keep a record and be able to demonstrate the stated preferences of the person in any assessment and decisions on visiting.

Our response: We note the theme across the questions from a relatively small number of respondents that question the extent that providers will follow the new regulation and, in this case, the requirement to meet the preferences of the person using the service when facilitating visits.

As we have noted above, the new standard:

• helps providers understand the process for decision making about enabling. Our guidance states that “Everyone should work on the assumption that in-person visiting and accompaniment to appointments are possible.”
• gives us a clearer basis to assess whether providers are following the regulation and take action where required.

However, in relation to the responses made, we have strengthened our guidance since the consultation to say that “Providers should not apply blanket decisions or long-term restrictions.”

Our response: We acknowledge that some respondents raised concerns about the complexities that might be involved where people do not have capacity to make decisions for themselves about visits or accompaniment to appointments. This is a more technical area of law, and it is therefore not appropriate or practical to include the level of detail that could be required to fully cover this topic in guidance that is focused on meeting this specific regulation about visiting.

We have sought to improve some of the wording in the relevant section of the guidance for greater clarity but, where a person lacks capacity, it is important to be aware of legal considerations for that particular circumstance and it may be appropriate to take legal advice. Providers registered with CQC should also be mindful of any considerations under Regulation 11: need for consent.

Our response: As stated above, the new fundamental standard does not place additional requirements on providers in this regard: it is about not making decisions or creating barriers that would discourage people from going out on a visit if they wanted to or when it was in their best interests to do so.

The new regulation is to be implemented together with providers’ existing requirements to keep people safe, to provide person-centred care and provide sufficient numbers of staff to meet their requirements (regulations 9, 12 and 18). This may involve separate policies, procedures and staff deployment as required.

Our response: Like many respondents to our consultation, we recognise the vital importance of putting people at the heart of care. Person-centred care is a fundamental standard in its own right (Regulation 9) and is central to our regulation of services.

Regulation 9 states that “Providers must work in partnership with the person, make any reasonable adjustments and provide support to help them understand and make informed decisions about their care and treatment options, including the extent to which they may wish to manage these options themselves.”

We believe the new Regulation 9A enhances (without duplicating) the standard on person-centred care by putting a focus on visiting and accompanying in care homes, hospitals and hospices and the benefits this can have on the individual receiving services.

Reflecting the importance of involving people in decisions about visiting, and based on feedback received through the consultation, we have added some information into the guidance about the importance of communicating clearly to everyone, and about who they can contact if they have questions or concerns.

Our response: We note the high level of agreement that the guidance clarifies exceptional circumstances and acknowledge people’s experiences – particularly during the pandemic.

Our response: We have given a response to the feedback about subjectivity of the guidance, particularly around ‘exceptional circumstances’, against other consultation questions – see the response to Question 1. In summary:

• We do not want to ‘normalise’ what exceptional circumstances are by giving a list of examples.
• The regulation and guidance are clear that providers should work on the assumption that visits are possible.

Our response: As reflected in our response above, we recognise there will be times when implementing the regulation will span the rights and wishes of different people. Throughout the guidance we have emphasised the importance of making decisions after a full assessment of the person’s preferences as well as the risks involved. The guidance states there may be exceptional circumstances where, despite any precautions put in place, a visit or accompaniment may still pose a significant risk to the health, safety or welfare of a person using the service or others on the premises.

In recognition of the need to be proportionate, our guidance highlights that providers should apply human rights-based decision making and individual risk assessments. We explain that human rights-based decision making ensures any restriction to a person’s right to receive visits and be accompanied has a legitimate aim and is necessary and proportionate.

We have added to the guidance that communication is important to keep everyone (as appropriate) informed about this process.

Our response: We acknowledge that some respondents would like more detail around what happens if there is a dispute between the person using the service, their family, or the provider. Partly in response to this, we have added in our guidance how providers should be clear with those involved who they can contact within the service if they have questions or concerns about any restrictions in place.

In addition to this, providers registered with CQC must already be meeting the other regulations that apply to them, including Regulation 16: receiving and acting on complaints. Providers must already have an effective and accessible system for identifying, receiving, handling and responding to complaints from people using the service, people acting on their behalf or other stakeholders.

CQC does not have a role in dispute resolution or dealing with individual complaints, but we do signpost people to the relevant organisations who can assist where they are not satisfied with how a provider has handled this – Complain about a service or provider. We also encourage people to Give feedback on care, as problems with how providers handle complaints about any aspect of care may be an indication of wider quality and safety issues.

Our response: Again, we appreciate the many respondents who reflected on this guidance – often from their varied experiences and perspectives.

Our response: We stated in our consultation that “This consultation is limited to our guidance about the new fundamental standard. It does not cover the scope and content of the visiting legislation itself, which was subject to the Department of Health and Social Care’s own, separate consultation.”

Our response: Given that this feedback re-iterates concerns or issues that are covered in earlier questions, we will not duplicate them or our responses here.

Our response: Supported living, shared lives and extra care schemes differ from other health and care services in that they are individuals' private residence and not locations registered by CQC. These schemes are not in scope of this regulation.

Our response: As mentioned in other responses, our guidance emphasises the importance of making decisions after a full assessment of each person’s preferences as well as the risks involved. And in recognition of the need to be proportionate, our guidance highlights that providers should apply human rights-based decision making and individual risk assessments.

Our response against question 5 relays the various ways people can resolve disputes and how this is covered in Regulation 16. Although CQC does not have a role in individual complaints resolution, we do invite people to Give feedback on care, to help us understand the quality of care they get from health and care services.

Our response: While some respondents were positive about the focus on a person centred and human rights-based approach in the guidance, we acknowledge that some felt this could be strengthened further. While we do not regulate or enforce against the Human Rights Act 1998, CQC is a human rights-based regulator and this approach underpins all our regulatory activities. Care that does not respect and promote people's human rights is neither safe nor high quality, and this approach to regulation will continue into our assessment of providers against this new Regulation 9A.

In response to comments, we have strengthened the introduction to the guidance to be clearer about what we mean by human rights-based decision making and to also make specific reference to providers’ existing requirements under the Human Rights Act 1998 and Equality Act 2010. Throughout the guidance we have changed some wording to align more closely with human rights-based language. You can find more information about our updated human rights approach to regulation.