Gardner v Secretary of State for Health and Social Care – Judicial Review Further Update

The public challenge brought by claimants Dr Cathy Gardner and Fay Harris in respect of the government’s COVID-19 hospital discharge policy reconvened on Friday, 22 October. The days’ submissions followed from the adjourned hearing on Tuesday, 19 October, reported here. This blog will explore the key issues addressed at the hearing, and consider the way forward for the claimants’ case.

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Gardner v Secretary of State for Health and Social Care – Judicial Review Update   

The judicial review of the government’s early response to COVID-19, specifically in respect of discharging COVID-19 positive patients into care homes, commenced yesterday with Lord Justice Bean and Mr Justice Garnham presiding. Permission for the review was granted on all grounds by Justice Linden following an appeal by the bereft claimants Dr Cathy Gardner and Fay Harris. This blog will explore the key issues addressed at the hearing yesterday.

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Report critical of the UK’s handling of the coronavirus pandemic and effect on care homes

A joint report by the House of Commons All Party Health and Social Care and Science and Technology Committees says the UK’s failure to prevent the spread of COVID-19 pandemic was one of the worst ever public health failures. 

Focusing predominately on England, the report criticises delays in introducing a county wide lockdown.  The delays in dealing with the pandemic meant that certain vulnerable groups such as care home residents and people with learning disabilities were particularly susceptible to the virus, and the government did not prioritise the social care sector at the outset.  In particular the report criticises the rapid discharge of patients from hospitals into care homes.  Also lack of testing of social care staff meant that the virus could enter care homes from the community.   

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What is the UK’s legal position on compulsory vaccination?

It has been confirmed that the COVID-19 vaccination will become compulsory for staff that care for the elderly and vulnerable. In enforcing such a requirement, organisations are likely to face a number of issues and potential pitfalls, and it is important therefore to explore the key steps if you are considering introducing compulsory vaccination for staff or those deployed in the organisation.

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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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