People living in care homes are being treated by Public Health England as if they are “different species”, according to a campaigner whose organisation has launched a challenge to a ban on residents making trips.
The action is being taken by John’s Campaign, which says official guidance fails to accurately express the law and to advise care homes on their legal obligations to people aged 65 and over.
The campaign, which advocates for the rights of people with dementia, wrote to the Department of Health and Social Care, in December to warn it was considering a challenge to the lawfulness of guidance on visits out of care homes, published on 1 December 2020.
Now it has launched a legal action, arguing that any decision on whether persons can go on a visit outside a care home should be based on individual risk assessments. It is also fighting to overturn rules on self-isolation, which stipulate that anyone who leaves a care home must self-isolate for 14 days upon return.
Julia Jones, a co-founder of John’s Campaign, said residents had been “comprehensively ignored” during the pandemic.
She told BBC Radio 4’s Today programme: “People living in care homes are people very often living towards the end of their lives, or they are people living with a learning disability, for whom their wellbeing is dependent on their routines. These people have been comprehensively ignored.
“We understand this guidance was prepared very hastily, we sent a message back at the time. They have had almost a month to make it better, they haven’t done so. We’re just not going to wait – this is unlawful and wrong.”
The campaign has said that the Equality Act 2010 prohibits indirect discrimination, but the guidance on care home visits “permits (indeed, requires) just such a discriminatory approach to be taken”.
A letter to the DHSC by the campaign’s solicitors, Leigh Day, said the guidance must balance the Covid-19 risk against the harm caused by keeping people away from their families.
It said elderly care home residents’ increased risk of catching coronavirus “do not displace the requirement for specific risk assessments which also balance the harm to a care home resident of not visiting outside of the care home”.
The letter added: “That risk being particularly stark where many individuals in care homes have suffered from prolonged separation throughout this year.”
Those aged 64 and under may be permitted to leave the home, even if they have a condition that makes them extremely vulnerable, it said, but those above that age who are otherwise healthy are not.
The DHSC has said it is looking at changing guidelines as the country moves out of lockdown and will act whenever data supports a particular course of action.
A DHSC spokesperson said: “Residents over 65 can make visits outside of care homes in exceptional circumstances and all decisions in relation to visiting should be made on the basis of a risk assessment centred around the individual. This is made clear in our guidance.
“As we move along the roadmap, we are looking to open up more opportunities for visiting both into and outside of care homes – wherever this can be done safely and is supported by data.”