Birthrights has today published legal advice, which states that requiring a partner or new parent to self-isolate may be unlawful in certain circumstances.
We have written to NHS England & Improvement, asking them to correct the paragraphs in their visiting guidance for maternity services which suggest that partners or new parents should always be asked to self-isolate following a positive test result. The human rights of the families concerned must always be a consideration. Whilst we welcome the NHSE England guidance on visiting restrictions published in December as a whole, the external legal advice received from Leigh Day and Doughty Street Chambers makes clear that:
“It is…wrong in law to suggest that “legislation” requires all parents who
test positive for COVID-19 to self-isolate at all times. Being present during
childbirth and at the neonatal stage may be necessary for the purposes of
“medical assistance” or it may be necessary, depending on the facts of an
individual case, to facilitate the exercise of article 8 rights.”
Regulation 11 of the self isolation regulations allows individuals to leave home if they have a “reasonable excuse” in addition to the explicit exemptions given. Birthrights believes that accompanying a woman or birthing person who would otherwise give birth without someone they know, for example, is highly likely to be a “reasonable excuse”.
Trusts will still have to take into account infection control in their decision making, for example, provision would have to be made for new parents who have had a positive COVID test to see their baby away from other patients and visitors, but the self isolation regulations should not be guiding decision making.
In order to provide further clarity, Birthrights has also asked the Department of Health to make being a birth partner and visiting your baby in a neonatal unit explicit exemptions from the self-isolation regulations. We will provide further updates on this in due course…