New ‘visiting’ rules for Hospitals and Care homes - How good is the consultation?

This is Blog No 32

Answer: it’s good … but not good enough!

There are very few public consultations that can affect people’s lives to the extent that this one can! Millions of us will use NHS or Social Care services every year, and millions will want to visit friends or relatives in hospitals, hospices, or Care homes.

This week, the Department of Health & Social Care (DHSC) introduced a comprehensive consultation on its plans to introduce a new set of minimum standards in England – replacing a complex, bureaucratic patchwork of guidance.

Given the traumas caused by restrictions introduced during the Pandemic, it’s hard to imagine much disagreement with this initiative. Indeed, there is much in this exercise that reflects well on the three Ministers responsible. They are consulting at the right time – before too much has been set in stone. In their words, it is designed to “ensure that we hear directly from those most likely to be affected by this policy proposal and will help us to gather the evidence required to determine what action should be taken on visiting in health and care settings.”

This is excellent; I like it. Ministers are, in effect saying, “Here is the situation; these are the ideas we have, and we’d like to know your views before drafting new legislation.” So much better than “Here are a new set of regulations – what do you think of them?”

It has a clear and sensible narrative. It shows how Ministerial Guidance, NHS England advice, Care Quality Commission (CQC) Regulations, (which only obliquely cover visiting rights) and the provisions of the Human Rights Act cover the issue. … and that they’re probably only intelligible to a trainee bureaucrat or a nerdy lawyer! It is exceptionally good at offering potential exemptions to a blanket requirement to allow visitors. Ministers also plan to cover attendances at hospital outpatients, Accident & Emergency units, or diagnostic centres – where the new rules will prescribe that patients have a right to be accompanied. Good progressive enhancements to many people’s comfort and self-confidence.

There are 39 questions – all accessible via this link.

A good and timely consultation therefore, and one that, I hope, attracts tens of thousands of respondents – especially those who suffered from restrictions on their ability to visit loved ones during the COVID19 pandemic and since.

However, there are flaws, and maybe it’s the Consultation GuRU’s role to point these out.

1. There is no pre-consultation narrative. None. Best practice – usually adopted by the better Integrated Care Boards (ICBs) is to explain how they have been in relevant dialogue with key stakeholders – and these days they are strongly urged to co-produce solutions to difficult issues. Maybe the DHSC has been in extensive discussions with NHS Managers, Care Home operators, Healthwatch, the Patients Association and other interested bodies for months. Surely, they must have been involved, and surely a summary of these exchanges would have added credibility to Ministers’ proposals. But no. Today I went to the websites of the British Medical Association (BMA), the Royal College of Nursing (RCN), the NHS Confederation, Healthwatch England and half a dozen other relevant bodies, looking for signs that they had been involved. Either they haven’t, or they are keeping the talks more secure than the average Resignation Honours list! Pity.
2. Ideally, such talks would have influenced the scope of the consultation. In their absence, who took those decisions? One result is that there is at least one glaring omission in the issues that this otherwise-comprehensive consultation covers. It is the enforceability question. What happens if a Care home refuses access for a visitor under circumstances that may be in breach of the new regulations? Rely on existing procedures, and your loved one might no longer be there by the time a complaint is considered. Admittedly, I’m not being entirely serious, but the enforceability issue is not properly addressed, and one feels that if there had been more stakeholder involvement at the pre-consultation stage, maybe the ‘agenda’ might have been more effectively determined.
3. For some unaccountable reason, and in contrast to consultations published by other Government departments, the DHSC makes no reference to the ubiquitous Consultation Principles either in this, or its other consultations. I’m not sure if this is sloppiness or a conscious policy to avoid drawing attention to some important inconsistencies. For example, the Principles - in a convoluted way – discourages excessive reliance on online methods. Principle F, for example states: Consider how to tailor consultation to the needs and preferences of particular groups, such as older people, younger people or people with disabilities that may not respond to traditional consultation methods. This exercise offers no alternative to the online survey. No focus groups; no deliberative events; no representative dialogues, nor even the opportunity to make written submissions. The online survey itself is good and contains excellent questions about respondent views on how visits can be better managed etc. But it should not be the onlydialogue method – especially when the view of an organisation representing 20,000 people may have to be assessed alongside a single individual’s opinion. The quantitative data will be good, but where and what will be the qualitative input?
4. There are strange omissions in the demographic data being collected in respect of respondents. Quite rightly, it asks willing participants to state their age, sex, gender identification and even regional location. But the survey does not seem to want to know your religion, your ethnicity or even if you are disabled. I would have thought that current experiences of being a visitor and the need to be more conscious of diversity in new Regulations would have benefitted from being able to analyse the views of respondents reporting themselves to be covered by these equality protected characteristics. Which survey firm allowed this to occur?
5. The consultation does not provide an Impact Assessment (something specifically required by the Government Consultation Principles). It says “We intend to undertake a full impact assessment to inform the final policy and decision to proceed …” This is not good practice, for it does not enable stakeholders to provide an opinion as to whether they agree or disagree with the Department’s assessment. What happens here is that in addition to seeking the views of the public about the proposal, it uses the consultation to gather data from Hospitals, care-home providers, hospices, and other providers as to what they think the implications might be. It provides a long and rather impressive list of potential impacts. Paraphrased questions like: Will you need more staff? Do you anticipate more paperwork? Will you be under pressure to accept more visitors?  All important enquiries. It then asks providers to estimate how long each visit lasts on average – the kind of data gathering one might have thought would already have been studied in detail long before Ministers embarked upon the consultation. It shows confusion about the true role of the exercise – and maybe signs of something done in a hurry.
6. There is too much vagueness of what happens next. The Consultation Principles state that the output should be published within 12 weeks. Or an explanation of why it can’t. This is now routine for the better consultations. This lasts till 16 August – only 8 weeks and including a holiday period, so not great. But it provides no timetable for going forward, and no commitment to when legislative changes might be made. We face a General Election, and even though, in theory secondary legislation can be enacted quickly, one wonders whether this has sufficient political impetus. Being cynical, is it perhaps just a useful initiative to have on the table whilst the COVID19 Enquiry starts to hear evidence about the distress caused to patients … and visitors … during the pandemic?

Let us give Ministers the benefit of these doubts. My long list of criticisms should not obscure the fact that those responsible for this consultation have done a creditable job. It is not a poor consultation; and it is an important one.

It just could – and should - have been better. It reinforces my view that Government should establish a compliance unit that would help Departments avoid unforced errors such as these. It should also ensure consistent observance of sensible standards that would improve the quality and credibility of consultations – as well as avoid Ministers and officials the occasional trip to the High Court to defend avoidable judicial reviews.

How good is it? 

On the scale of 1 to 10, and as the late lamented Len Goodman might have said ….”SEV…EN”

No more.

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