Can employers force frontline carers to be vaccinated?

In the last few weeks we have seen a number of well known care providers introducing new policies, whereby new staff will be required to have the COVID vaccine prior to starting work. Some care providers have gone as far as requiring current care staff to be vaccinated, unless they are unable to on medical grounds. Some care providers have seemingly made it clear that if staff members refuse, purely out of choice, then this will make them ‘unavailable to work’ within frontline care settings. It seems that this decision has been made, amid concerns over the uptake of the vaccine amongst care workers across the UK.

No doubt, these decisions have been made to ensure the protection of those being cared for, as well as for staff members. However, with more care providers deciding to take this step, the question is now whether this raises employment concerns, for discrimination and unfair dismissal, amongst other things.

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Update on the potential impact of carers refusing vaccination

In our previous blog of 17 December, we considered the potential employment law implications for care homes where staff refuse to be vaccinated against COVID-19.  The vaccination programme is now picking up pace across the country, with the Government announcing earlier in the week that more than 4 million people had received their first dose. However, the daily figures for COVID-19 related deaths reached a peak of 1,820 on Wednesday, amid serious concerns that the vaccination programme is not being carried out quickly enough to stop the increasing number of deaths in care homes in recent weeks.  

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Discharge of hospital patients who test positive for COVID-19 to care homes – will Designated Settings make an impact?

As was highlighted in this blog, the Vaccines Minister Nadhim Zahawi has announced a ‘targeted and time limited state backed indemnity’ for care homes which are registered as Designated Settings or intending to register as a Designated Setting, and which are unable to obtain commercial insurance. The question is, will this relatively short-term move have the impact that is needed right now to protect the NHS and care sector?

So what is a Designated Setting?  
It is essentially a care home which has applied and been assessed by the Care Quality Commission (CQC) as an appropriate setting to care for COVID-19 positive patients who are discharged from the NHS and who no longer require an acute hospital bed. The objective is of course to relieve pressure on the NHS as it copes with the winter crisis.

The aim is that there is at least one Designated Setting in each local authority ‘as soon as possible’.

How are the care homes assessed?
The care homes are assessed by the CQC using its Infection Prevention and Control framework (IPC). Assessments are made to ensure patients are being physically separated, that there is a dedicated workforce and appropriate emphasis on ventilation.

The CQC is using an ‘eight ticks‘ approach in order to give the public an overview as to factors such as the availability of adequate PPE, that staff are properly trained to deal with outbreaks and the appropriate processes needed, that shielding is being complied with and hygiene practice is promoted.

How many Designated Settings are there currently?
As at 12 January there were 135 approved Designated Settings providing a total of 1,624 approved beds. The coverage across the country is however currently variable – there are only 87 approved beds for instance in London, but 381 in Yorkshire and the Humber.

Testing of CQC inspectors
Up until now CQC inspectors were not tested for COVID which was a source of concern for many. It is now proposed that inspectors will be tested weekly with the testing being rolled out in the coming weeks. It is not clear however why there is to be a delay since care home staff are already being regularly tested.

What is the state indemnity scheme going to cover?
The indemnity will cover claims for clinical negligence and employers’ and public liability where the care home provider operating a Designated Setting has been unable to secure such cover in the commercial insurance market..

The clinical negligence aspect will be covered by the Clinical Negligence Scheme for Trusts (CNST) supervised by the DHSC and NHS Resolution.

However, as things stand this indemnity will be in place only until March 2021 and is to be reviewed in mid-February.

How helpful is this scheme going to be for the care home sector?
One of the concerns for care home managers seeking to participate will no doubt be the ability to provide a dedicated COVID- 19 workforce, particularly given the pressures on staffing already apparent.

If Designated Settings are to be contained within care homes also containing those who have not been exposed to COVID-19, reassurance around dedicated staff, PPE provision, social distancing and adequate ventilation may not be enough to convince service users that they are in fact completely safe.

 It remains to be seen how successful the scheme will be for care home operators who have difficulty in obtaining commercial insurance cover for COVID related claims. The impact on the NHS of course will depend on just how successful this scheme actually is in freeing up acute beds.

Given however that the indemnity scheme is limited in its time frame and scope the concern must be that it will simply be insufficient to make any real impact on the problem.


This image has an empty alt attribute; its file name is woodwark_s-13_web.jpg
Sarah Woodwark, Partner, BLM
sarah.woodwark@blmlaw.com

Preventing Future Deaths reports arising from COVID-related deaths

It has been reported that approximately 100,000 people have now died from COVID-19 in the UK. Vulnerable adults are at the greatest risk of the disease and it is understood that close to 20,000 care home residents died in the first wave last year. Recent reports from the Guardian show the deaths in care homes in England have increased by 46%, the highest level since mid-May last year.

The Chief Coroner’s guidance in March 2020 confirmed that COVID-19 is a naturally occurring disease and therefore is capable of being a natural cause of death. This clarified the position that a death arising from COVID would not ordinarily be referred to the coroner, however, such a referral would be considered justified if there were additional factors which meant that a report of death to the coroner would be necessary.

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Government backed indemnity schemes announced for ‘COVID-19’ positive care homes and Community Pharmacies administering vaccines

We have previously written about the UK government’s plan to set up designated settings for persons leaving hospital who require a care home but have a diagnosis of COVID-19.  This was originally outlined in the Adult Social Care Winter plan released in November, and each local authority was required to put in place plans to set up such facilities.  Part of the set up problems was the willingness of the insurance market to provide cover for these settings. 

In a written statement this week (18 January 2021), the Vaccines Minister Nadhim Zahawi has confirmed provision of a temporary government backed indemnity to provide cover for clinical negligence, EL and PL cover in the circumstances where a care provider cannot secure sufficient cover, or cover at all via the commercial insurance market.  The scheme is intended to run only until the end of March 2021 and, as such, has the feeling of a ‘stop gap’ solution.

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The continuing search for answers on COVID-19 and care homes north and south of the border

North of the border

As at 29 November 2020, there had been 2,315 COVID-19 (C-19) related deaths in Scottish care homes. On 27 May 2020, the First Minister of Scotland committed Scottish Government to holding a public inquiry into the handling of all aspects of the C-19 pandemic, including those relating to care homes, however calls are growing for a more immediate inquiry into the care home aspects.

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Assistive technology in a reformed social care system

We wrote in 2019 about the role of assistive technology in how it could help social care users.  A new Commission by two care bodies has now been launched to explore the role of assistive technology in a reformed social care system.  The COVID-19 pandemic has shown the weaknesses and frailties of the UK social care system.  What role could assistive technology play in creating a more robust social care system for the future?

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High Court gives permission for judicial review into care home policies taken at start of pandemic

We wrote at the end of October about the crowdfunded legal challenge being brought against the UK Government in relation to their response to care homes at the start of the COVID-19 pandemic. Yesterday, in a remote hearing, Mr Justice Linden gave permission for this legal challenge to proceed to a full hearing.

The claimants, Dr Cathy Gardener and Fay Harris, are seeking a judicial review of the policies and related measures which had a bearing upon the protection of care homes between March and June 2020. They first formally brought their legal challenge in June, following the death of their fathers (who were both residents in care homes) from COVID-19 in April and May this year. As we have often reported in this blog, tens of thousands of care home residents have tragically died in care homes from (either confirmed or probable) COVID-19, since the beginning of the pandemic.

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Visits to care homes during lockdown

The topic of visiting care home residents continues to hit the headlines this week. 

The government published guidance for visiting care home residents this week. Previously care home visits had been banned in Tier 2 and 3 areas.  The new guidance confirms that visits may continue during the lockdown period for England, so long as this is done in a COVID secure manner, using for example PPE and social distancing, and recording visits for Test & Trace. The new guidance comes following widespread pressure from charities and industry bodies to allow visits.

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No testing for CQC inspectors: does it risk a breach of the requirement to provide safe care?

The Department of Health and Social Care has made the decision to deny testing to Care Quality Commission (CQC) inspectors, placing service providers at risk of breaching their requirement to provide a safe care environment.

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