Mandatory vaccinations and medical exemptions of care home workers – government u-turn or a temporary reprieve?

It has recently been reported that care home workers are able to opt-out of the mandatory COVID-19 vaccination requirement by self-certifying that they are medically exempt.

Thursday 16 September 2021 was meant to be the deadline for all carers to have received their first COVID-19 vaccination. This mandatory vaccine requirement for all care home staff has been a source of constant debate since it was announced, with growing concerns that a significant number of care homes may be forced to close and thousands of staff from an already depleted workforce risked losing their jobs if they declined to have the vaccine. The government has been lobbied by both providers and unions that care home workers had been “singled out” and the very real possibility of the doomsday scenario of a mass exodus of care home staff in England, so it perhaps does not come as a great surprise that Whitehall has taken some evasive action (perhaps with an indication as to how many staff had refused the vaccine). However, how effective will this self-certification opt out process be and is it only a temporary fix to what has become a polarising political issue.

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Could restricted access to dental care lead to claims?

A recent article in The Telegraph has highlighted the impact that the COVID-19 pandemic has had on the dental health of children.

NHS figures reveal that the number of children having dental check-ups fell by 50 per cent during the first year of the pandemic. In total, the number of under 15s who saw a dentist fell from 5.8 million to 2.9 million.

It is, however, the youngest age groups which have been impacted the most. Whilst there were 1.2 million dentists’ appointments for under 5s in 2019, only 468,000 appointments were arranged for 2020, a 60% fall. The article suggests that only 1 in 7 children under the age of 5 saw a dentist in 2020 compared to 1 in 3 during 2019.

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Bringing people closer to their data

This is the second article in our Data Series on BLM’s Health and Care Blog, examining the Department of Health and Social Care policy paper: “Data saves lives: reshaping health and social care with data” which sets out the Government’s vision of the part that data will play in the digital transformation of the NHS.

In this article we consider the Government’s stated vision to “deliver truly patient-centred care, which puts people before systems, so people will have better access to their personal health and care data and understand exactly how it is used.”

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Personal Data and the Digital Transformation of the NHS

In 2019 the NHS Long Term Plan was published, including the NHS Digital Transformation Plan. It set out the aim of the NHS to change the way in which healthcare is accessed and provided, supplying digital services to patients and digital tools to staff and providing access to joined up patient records.

The COVID-19 crisis has accelerated this transformation and digital developments have been a key part of the response. Most people will be familiar with the NHS App and the technology that has been deployed in tracking and tracing the infection. Anyone watching Chris Whitty’s slide shows will also be in no doubt as to the part that the effective use of data has played in analysing and responding to the emergency.

Against this background, the Department of Health and Social Care has published a policy paper entitled “Data saves lives: reshaping health and social care with data” setting out its vision of the part that data will play in the digital transformation of the NHS, with the declared mission to “ unleash the unlimited potential of data in health and care, while maintaining the highest standards of privacy, ethics, and accountability.”

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Removing COVID restrictions – what will be the effect on the Social Care Sector?

The vast majority of COVID-19 restrictions are set to be removed in England on 19 July.  It’s worth noting that deaths in care homes with the involvement of COVID-19 have reduced substantially in recent months – see here for the most recent ONS statistics on reported deaths from care homes. But will this downward trend continue once restrictions are removed generally across the population, especially in view of rising infection levels? 

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Tort reform ideas outlined in maternity safety report?

Last week the Commons Health and Care Select Committee published what is likely to be a very significant report examining safety issues in NHS maternity care. The primary focus of the report is improving patient safety by learning from well-documented failings in East Kent, Shrewsbury and Morecambe and the report makes important recommendations on this aspect. A second strand of the inquiry was to review the effect that the current clinical negligence claims and litigation process has on improving outcomes and to consider if changes are necessary. The Committee found that they are and this blog summarises its recommendations on that topic.

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COVID-19 vaccinations – the right for healthcare workers to decide and the impact on social care

Most people who followed the press coverage in the UK following the public announcement of an ambitious national vaccination rollout would have foreseen the possibility for tension to exist between the public drive for everyone to be vaccinated against COVID-19 and the right of autonomy to refuse. The number of “anti-vax” conspiracy theories circulating online is simply staggering and some of the farcical claims really do beggar belief, notwithstanding the government’s attempts to allay these concerns. However, whilst many are content for individuals to make their own informed (or otherwise) decision, it becomes a far more emotive subject when the workers concerned are in the healthcare sector. Chances are, the majority of people reading this will have been affected directly or indirectly by COVID-19 and many more will have vulnerable or elderly relatives who rely upon the care and unwavering dedication of healthcare workers but it may not be a particularly comforting thought if the person providing that care to a vulnerable loved one were to refuse the vaccine.

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The Rise of Telemedicine

Telemedicine is a general term that refers to the provision of medical care at a distance through telecommunications technology.

Synchronous telemedicine is performed in real time, such as a video call between a patient and a provider. It can also be provider-to-provider such as when an A&E doctor consults with a remote cardiologist on the best treatment for a patient.

Asynchronous telemedicine includes “store-and-forward” technologies, such as online portals that allow patient–provider or provider–provider communications. It also includes chat bots such as those designed to help a patient decide whether to get tested for the virus that causes COVID-19 and remote monitoring of patients through wearable or implantable devices.

Advantages

Telemedicine comes in many shapes and sizes and offers many advantages over the traditional healthcare visit. Two key drivers of health and social care policy in the UK over the last decade have been related to patient convenience and controlling the growing budgetary pressures.  

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“Rigid and concerning resistance” – Insight and review hearings

Dr Kevin Peter Newley v General Medical Council [2021] EWHC 1538 (Admin)

The judgment in a recent High Court appeal shines a spotlight on the need for registrants to acknowledge (although not necessarily accept) the findings made by a substantive regulatory Tribunal and to demonstrate the remedial steps taken to ensure the situation does not arise again.

Dr Newley appeared before the Medical Protection Tribunal Service facing clinical allegations concerning eight patients. His fitness to practise was found impaired and a nine month suspension order was imposed. Dr Newley unsuccessfully appealed against the tribunal’s decisions on impairment and sanction. A review hearing subsequently took place which resulted in an order of conditions being imposed. Dr Newley appealed against the decision of the review tribunal but, again, was unsuccessful. 

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An over-enthusiastic and ultimately flawed frolic – Understanding the charges and applying Kuzmin

General Medical Council v Dr Azubuike Udoye [2021] EWCA 1511 (Admin)

Dr Udoye appeared before the MPTS facing charges of dishonesty. He did not give evidence and the case concluded with a finding of no misconduct. Perhaps unsurprisingly, the GMC utilised its right of appeal, under s.40 of the Medical Act 1983. Mr Justice Holgate had no difficulty in upholding the appeal and remitting a number of allegations for consideration by a differently constituted Tribunal.

The facts of the case were that Dr Udoye qualified as a doctor in Nigeria and later sought inclusion in the GMC’s GP register. Having unsuccessfully sought a certificate of eligibility for GP registration, he joined a GP Induction and Refresher scheme (a scheme for doctors previously included in the GP register whereas Dr Udoye had never been included).

The relevant allegations before the MPTS related to Dr Udoye’s completion of the scheme’s registration form (in which he stated that he was included in the GMC’s GP register) and practising as a GP during the scheme. The Tribunal concluded:

  • that Dr Udoye had not practised as a GP as his work was supervised meaning that he had not practised as an “independent” GP; and
  • that the GMC had not proved on the balance of probabilities that Dr Udoye had acted dishonestly when completing the registration form as the evidence in terms of a dishonest or innocent explanation was finely balanced.

The GMC appealed on the grounds that the Tribunal had misinterpreted the allegation that Dr Udoye had not practised as a GP and that the Tribunal had not given proper consideration to whether an adverse inference should be drawn from Dr Udoye’s decision not to give evidence.

Mr Justice Holgate held that the Tribunal had erred in adding the word “independent” into the allegation that Dr Udoye had practised as a GP, there was no justification for adding this word and that the language of the allegation was “perfectly straightforward and clear”.

It is set out that the GMC’s position regarding the meaning of the charge was made clear in writing, in response to a submission of no case to answer, with that response being adopted in closing submissions. Mr Justice Holgate comments that it is a pity that the Tribunal did not confirm that they had the document in question and that they had re-read the relevant passage before the hearing concluded. A pity indeed given the cost of the appeal process and the inevitable delay and costs arising from the need for a further MPTS hearing.

It was also held that the Tribunal’s reasoning was flawed in respect of the application of the principles set out in R (Kuzmin) v General Medical Council [2019] EWHC 2129 (Admin) when considering whether or not an adverse inference should be drawn.

Kuzmin established that an adverse inference can be drawn from a registrant refusing to give evidence. It was held that whether to draw an adverse inference would be dependent upon the facts of the case but that generally, no adverse inference would be appropriate unless the following criteria are met:

i) a prima facie case to answer has been established;

ii) the individual has been given appropriate notice and an appropriate warning that, if he does not give evidence, then such an inference may be drawn; and an opportunity to explain why it would not be reasonable for him to give evidence and, if it is found that he has no reasonable explanation, an opportunity to give evidence;

iii) there is no reasonable explanation for his not giving evidence; and

iv) there are no other circumstances in the particular case which would make it unfair to draw such an inference.

It is in considering (iv) that the Tribunal went astray as they are said to have “embarked upon a full evaluation of the merits of the allegation disregarding the issue of whether an adverse inference should be drawn”.

Mr Justice Holgate held that it is plain that criterion (iv) is only concerned with procedural unfairness (with all of the Kuzmin criteria being rooted in principles of fairness) and that a Tribunal should not examine all of the evidence for or against the allegation to decide whether the criterion has been met.

Should it be established that the criteria set out in Kuzmin are met, the Tribunal should go on to consider whether it is appropriate to draw an adverse inference and can at that stage take into account important public interest considerations. Should an adverse inference be drawn, that is one factor to be taken into account when deciding whether the allegation is proved. A decision should be made as to how much weight is to be given to the adverse inference, with it being possible that no significant weight will be given. When considering the weight to be attached, a Tribunal should consider the impact of there being no opportunity to test the credibility of the registrant’s evidence or the merits of any innocent explanation that has been put forward by way of submissions alone.

Mr Justice Holgate held that in view of equal weight having been given by the Tribunal to all other matters for and against the allegation, the issue of whether an adverse inference should be drawn and how much weight should be given to it was “obviously material” and that the Tribunal’s reasoning, in disregarding that process, was legally flawed.

In conclusion, it seems that the Tribunal strayed into interpreting and adding to the allegations when there was no need to do so. Further, faced with a possible dishonest or innocent explanation and without the benefit of the registrant giving evidence, the Tribunal failed to follow the careful, staged approach that is required when a registrant declines to give evidence. A Tribunal must consider procedural fairness at the outset then decide whether to draw an adverse inference before assessing the evidence and whether or not an allegation is proved. Conflating these processes will only lead to trouble and potentially a fresh hearing before another Tribunal.  


Laura Smith, Associate, BLM
laura.smith@blmlaw.com