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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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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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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Social care reform, deaths in care and the pandemic

The Queen’s speech was delivered to both Houses of Parliament on 11 May 2021 with a focus upon protecting the health of the nation and economic growth. Criticism has been made however, of the lack of a concrete commitment to address the long-standing funding issues that have plagued the care sector with a brief mention only made within the speech that “proposals on social care reform will be brought forward”.  This appears to follow a lack of agreement between No 10 and the Treasury regarding a strategy to limit the amounts pensioners have to pay towards their own care. 

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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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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

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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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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