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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ACAS guidance published – getting the COVID-19 vaccine for work

Our latest blog post commented on the new Government rules coming into effect from 11 November 2021 around vaccination for anyone who works inside a CQC registered care home in England. ACAS has published new advice for care home staff in England setting out how employers can approach the issue with their staff.

Following the suggestion that mandatory vaccination in a care home setting could lead to around 3-12% of care home staff being no longer able to work, the advice from ACAS focuses on helping employers to support staff and to provide strategies to avoid potential disciplinary action or dismissal.

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Mandatory vaccines for care home workers ‘irrational’?

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.

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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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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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Potential impact of carers refusing to be vaccinated

As shown in the BLM Policy blog of 15 December 2020 (link here), COVID-19 (C-19) compensation claims appear to be gathering some momentum although, at this point, the total number of such claims that have been officially registered with the Compensation Recovery Unit of the UK Department for Work & Pensions remains very low.

As we have noted previously, new and untested questions on standard of care and legal causation would likely arise in any litigated C-19 claim. In this blog, we re-visit certain aspects of these potential questions in the context of vaccinations for care home staff.

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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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COVID-19: does the response of the regulators call for a fresh approach?

During the first wave of the COVID-19 pandemic, healthcare regulators reviewed their processes and made a joint commitment to take human and environmental factors into consideration when determining whether a complaint/incident reached the threshold for fitness to practise action.

In addition, the country saw an outpouring of support and affection for healthcare practitioners working hard to treat patients in hugely pressured and trying circumstances.

Alongside the guidance on relevant factors to consider during the life of an investigation, emergency registration was granted to recently retired practitioners under emergency powers granted by the Coronavirus Act 2020. Notably,  the GMC introduced guidance for decision makers on requests to relax or revoke sanctions or IOT orders in response to COVID-19 which allowed those whose registration was subject to restriction to apply for an early review of that restriction.

Do these changes reflect a change in what may be determined in the public interest and can healthcare professionals be reassured that such changes will remain in place once the impact of the pandemic has subsided? It may be more apposite to ask whether they should remain in place.

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