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Advice

The consultation is an important opportunity for health and social care employers to shape future regulations.

A consultation has been launched to seek views on whether the government should extend the existing requirement for those working or volunteering in a care home to be vaccinated against COVID-19 to other health and care settings, as a means of protecting vulnerable people. It will also consider whether to introduce a similar statutory requirement to be vaccinated against the flu.

The consultation will be open for a period of 6 weeks and will close on
22 October 2021.

Background

As explained in our previous update, the government has already legislated to make vaccination against COVID-19 a mandatory condition of deployment in CQC registered care homes in England.  . The new requirement ‘kicks in’ on 11 November 2021.  It was flagged in that consultation that the government would seek views in due course on rolling out a similar policy across the broader health and social care sector.

Who is in scope?

Any requirement to be vaccinated would apply to all those that are deployed to undertake direct treatment or personal care as part of a CQC regulated activity (unless the individual can evidence medical exemption) whether publicly or privately funded. This would include, but is not limited to, hospitals, GP practices and any care provision delivered in a person’s home and would include activity delivered through agency staff or where activity is contracted to a third party provider.

The consultation seeks views whether any particular settings or services should be exempt; and whether other professionals or volunteers working in these settings, but not undertaking direct treatment or personal care, should also be included in the scope of the proposed policy. This could include a wide variety of staff such as those that prepare and serve meals, cleaners, porters, or reception and administration staff.

It is not proposed that any vaccination requirement should be extended to friends and family who either provide personal care, or who visit people in health and social care settings or at home.

What about enforcement?

The government proposes to amend the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 to implement the new rules, most likely by supplementing the existing fundamental requirement on providers to prevent, detect and control the spread of infections. The Code of Practice on Infection Prevention and Control and its associated guidance would also be updated.

As with the new care home regulations, it would be the role of the Care Quality Commission (CQC) to monitor and take enforcement action in appropriate cases. The consultation document states that the CQC would take ‘a risk-based and proportionate approach to enforcement’, considering all the evidence to decide whether it is in the public interest to take action.

The CQC has civil enforcement options available including issuing a warning notice; issuing a notice of proposal/decision to suspend or cancel registration; and making an application to court for immediate cancellation of registration where risk of harm is perceived to be serious.  The CQC can also take criminal enforcement action against the provider or registered manager, in the most serious of cases

Pros and Cons

The consultation document sets out in detail the clinical rationale for the proposed policy.  In summary, the Scientific Advisory Group for Emergencies (SAGE) has advised that there is a strong scientific case for mandatory vaccination across the broader health and social care sector. Numerous studies are cited to the effect that vaccination is the most effective method of preventing infection, and of reducing the risk of transmission in individuals who do become infected

Following the decision to introduce mandatory vaccination in care homes, a number of social care stakeholders have called for parity in approach across the health and social care sectors, so that the most vulnerable are protected in every setting. According to the consultation, SAGE agrees with this stance, at least in respect of other inpatient settings where interactions between staff and patients are close and frequent.

As well as protecting vulnerable patients and service users, it is also anticipated that mandatory vaccination would reduce levels of staff sickness absence over what is anticipated to be a challenging winter for the NHS.

Mandatory vaccination is already required in the NHS in some circumstances. For example workplace health and safety and occupational health policies are already in place which require NHS workers deployed to undertake exposure prone procedures (e.g., surgeons) to be vaccinated against Hepatitis B.  Arguably, this precedent means that introducing mandatory COVID-19 and flu vaccination across the NHS may, therefore, be less of a cultural leap than implementing the requirement in a care home setting.

Weighing against the extension of mandatory vaccination however, is the fear among stakeholders of an increased exit rate from the health and social care sector, resulting in staff shortages during a peak pressure period.

The introduction of new rules would also place a significant administrative burden on employers across the sector, as widespread consultation with existing staff would be required. Changes to terms and conditions may be required in some circumstances, and new legislation would inevitably prompt a spike in other HR issues, such as grievances and, potentially, the dismissal of staff who refuse to be vaccinated.  

The consultation document lists the steps that the government has already taken to encourage vaccine uptake in the health and social care sector and asks whether stakeholders would prefer continued reliance on non-statutory measures to a mandatory vaccination requirement.

Comment

It is important to remember that these are proposals only and may not become law in their current form. The consultation is an important opportunity for health and social care employers to shape future regulations and the door has been “left open” to the continued reliance on non-statutory measures.

However, the introduction of mandatory vaccination in care homes, despite a very mixed response from stakeholders in consultation, perhaps indicates that the government may be willing to take a firm public policy stance on this issue, even if controversial.

We will keep you updated regarding the consultation outcome and if the decision is made to introduce legislation to make vaccination a mandatory requirement, in these settings.

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