The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 was made into law on 22 July 2021 and is scheduled to come into force for 11 November 2021.
This development has garnered a lot of press coverage as it makes it a requirement that any worker in a care home environment has to have been fully vaccinated unless they are exempt from vaccination.
Although it is not yet in force an attempt has been made to judicially review the lawfulness of it.
At this stage that challenge is pre-action but a well particularised letter of claim has been sent to the Secretary Of State for Health and Social Care dated 5 August 2021.
The first claimant is an employee of a care home who, it is claimed, ‘largely works from home’ and is ‘non-resident facing’ and since 2019 ‘did not and was not required to visit an operational care home’.
A second potential claimant is said to be a ‘front-line care worker of black heritage’.
The claimants challenge the lawfulness of the Health and Social Care Act 2008 (Regulated Activities)(Amendment)(Coronavirus) Regulations 2021 and seek that it is revoked. Their main arguments are that the Regulations:
- Are ultra vires, being incompatible with their parent Act and Parliamentary intent in passing it;
- Are a disproportionate interference with the right of bodily autonomy of front line and non-front line care workers contrary to Article 8 of the European Convention on Human Rights;
- Amount to interference of Articles 8 and 14 by reason of indirect discrimination on the grounds of race and/or sex for front line and no-front line care workers.
It is also claimed that the vaccination requirement is ‘irrational’ in circumstances where evidence increasingly shows that the vaccines do not materially reduce transmission of COVID-19.
In support of their argument that double vaccination does not prevent infection, the claimants use the Secretary of State for Health and Social Care’s positive COVID-19 diagnosis despite his double vaccination status.
The claimants suggest that if mandatory vaccination in a care home setting is brought in, then between 3 and 12% of care home staff will no longer be able to work.
The First Claimant has refused vaccination as she considers she has a degree of natural immunity from a previous COVID-19 infection and is concerned about the safety of the vaccination, the impact on her fertility and her previous history of allergies.
Somewhat oddly, and in what is suggested to be in support of the claim against the need for double vaccination, the letter of claim states that “vaccination protects residents from death and serious illness, but vaccinated care workers may still become infected with COVID-19 and importantly could still spread it to vaccinated residents”. This therefore highlights personal autonomy versus effect on others’ ethics of vaccination. By having the vaccination a care worker can help protect others from death and serious illness from COVID-19 despite the risk of them being infected themselves. If that worker is employed at a care home with vulnerable residents, and if there is something available to reduce the risk to those vulnerable people, then arguably it should be used. On 9 September 2021 evidence was released by Public Health England that vaccinations prevented more than 112,000 deaths in England alone.
There is precedence for the need for vaccination in a healthcare setting with healthcare workers who carry out invasive procedures on patients needing to be able to demonstrate that they are not carriers of Hepatitis B, Hepatitis C and HIV.
Everyone in a healthcare setting in the NHS is offered a Hepatitis B vaccination against this infection and it is ‘strongly recommended’ that healthcare workers take this up. Whilst it is not mandatory, working in an invasive procedure setting would be prevented if that worker did not have the vaccination. Refusal of Hepatitis B vaccination would not prevent someone from working as a medical doctor, but would reduce the areas of medicine that they would be able to practice in.
The Vaccination Act of 1898 allows patients to refuse vaccination should they wish and the UK Government have previously confirmed that the UK would not pursue a policy of mandatory vaccination.
Other developed nations have made vaccinations mandatory for high risk aged-care workers. France have made vaccinations mandatory for healthcare workers, Italy have said healthcare workers who refuse vaccination could be suspended without pay and in Fiji, unvaccinated public servants were forced to go on leave as of 15 August 2021. Fiji have now said that any public servant who remains unvaccinated by November 2021 will be dismissed from post.
Government consultation on vaccinations
The Government consulted on making vaccination a condition of deployment in care homes earlier in 2021. On 9 September 2021 the Government launched a consultation on mandatory vaccination for frontline health and care staff which is open for a period of six weeks.
It remains to be seen whether the letter before action in the judicial review will result in any change in the law before it comes into force on 11 November 2021. We consider this unlikely.
Whilst the potential impact of care home workers not being doubly vaccinated could further impact on staff retention and a reduction in the number of care staff available to cover posts, this will need to be weighed against the risk to the residents of the care home from cross infection from COVID-19. Based upon the direction of travel from other nations worldwide, mandatory vaccination against COVID-19 is more likely for those in a health and care setting than not.