John’s Campaign, a group which campaigns for people with dementia to be supported by family carers, has issued court proceedings challenging Department of Health and Social Care (DHSC) guidance for visiting in care homes.
The group says that the guidance, which was updated on 15 October, is unlawful as it encourages care homes in higher risk areas to institute blanket bans on family visits.
The papers submitted to court on Tuesday include supporting evidence from a wide range of organisations and individuals including Age UK, Alzheimers Society, Residents and Relatives Association, Butterfly Scheme, Rights for Residents, a leading psychologist from the UCL Dementia Research Centre and an infection control nurse.
John’s Campaign argue in the court case that the suspension of visits to care homes has had, and continues to have, a "catastrophic effect" on care home residents, particularly those with dementia who account for 70 per cent of those residents.
Many have suffered a rapid deterioration of their symptoms, and premature death, it says.
John’s Campaign began its legal challenge in the summer, before the tier system of local restrictions was imposed and after the guidance to care homes had been issued by the DHSC.
The group was set to apply for judicial review to challenge the lawfulness of the guidance and Winter Plan in mid-October, but the DHSC asked the group not to issue proceedings because updates to the guidance were due which would directly impact on the proposed case.
While John’s Campaign welcomed changes to the guidance that made clearer the need for individualised risk assessments in ‘medium’ risk areas, they say the new guidance has made the situation worse in over half of the country.
The judicial review application argues the guidance misstates the law by suggesting that for all residents in ‘high’ and ‘very high’ risk areas, visits should be limited to exceptional circumstances such as end of life, and that a “general policy” for all residents may be adopted.
John’s Campaign argues care home providers are under a legal obligation in all areas to carry out individualised risk assessments and the government’s own lockdown legislation provides a general exception for visits in care homes to take place.
The campaigners say the guidance is thus unclear and misleading, and it encourages unlawful decisions which, the evidence shows, have in fact been taken.
In addition, John’s Campaign argues the guidance creates an unacceptable risk of illegality because the evidence shows that Directors of Public Health and care providers have interpreted the guidance as requiring a blanket suspension of visits in high and very high risk areas aside for exceptional circumstances such as end of life.
John’s Campaign is represented by Tessa Gregory and Carolin Ott of Leigh Day and David Wolfe QC and Jessica Jones of Matrix Chambers.
“Given the devastating impact the government’s “blanket ban” approach is having on residents and their loved ones, they consider they have been left with no option but to issue these proceedings,” said Gregory.
“John’s Campaign are asking the court to hear their case on an expedited basis as this situation needs to be urgently resolved to make a difference to the thousands of care home residents currently facing a premature death alone,” she added.
