UPDATE: Mandatory Vaccinations in the Health and Social Care Sector

In July I wrote about mandatory vaccinations in the Health and Social Care sector. At that time the new regulations were recently approved changing the law whereby a provider of a Care Quality Commission (CQC) registered care home which provides accommodation for persons who require nursing or personal care, can only deploy staff who have received two doses of the COVID-19 vaccination. Since July, there has been further development on the change in law, what it means in practice and how it will be enforced. This article explores some of the key takeaways of the law that came into force on 11 November 2021.

Who does the rule apply to?

The rule applies to anyone coming to the care home in a work capacity. Those that the rule applies to were given a 16 week grace period to receive both doses of the COVID-19 vaccine in time for the regulations coming into force on 11 November 2021. The law is clear that both doses of the vaccine must have been received.

The rule does not apply solely to care home staff but also volunteers, visiting professionals and tradespeople. This must be stressed as the Department of Health and Social Care (DHSC) has received feedback that some visiting professionals are not aware of the requirement to be fully vaccinated by 11 November 2021. As a result the DHSC has written a reminder letter to visiting professionals. It is in care home provider’s interest to also send out reminders, in order to avoid challenging situations with people arriving to the care home in a work capacity after 11 November 2021. Updating contracts with tradespeople is another way to relay this message as it is the registered person (care home provider and/or registered manager) who will come under fire should the regulation be breached.

It is well known the controversy that currently exists regarding the disparity of the application of mandatory vaccinations in the NHS and care home sector. The consultation proposing NHS compulsory vaccinations for NHS staff considers both COVID-19 vaccinations and flu vaccinations. It also considers the wider social care sector including supported living and domiciliary care services. The consultation closed on 22 October 2021 and the Government has recently decided mandatory vaccinations in the NHS are to be delayed until spring 2022 due to potential issues with staffing levels during the winter. Whilst there was hope amongst care home providers that the 11 November 2021 deadline would be extended, it is now evident that, once again the social care sector has not been extended the same consideration as the NHS.

Exceptions Exemptions

Exceptions to the rule have always been clear. The rule does not apply to visiting family and friends, under 18s, emergency services, people undertaking urgent maintenance work or providing emergency assistance.

However, exemptions have not always been clear. The consultation back in May 2021 set out that only staff with a prescribed medical exemption are not required to be fully vaccinated. According to the consultation and outcome publication, a small number of people would fit into this category.

Letters from Claire Armstrong, Director of Adult Social Care Delivery have introduced both the temporary and formal medical exemption processes. The letter from Claire Armstrong on 15 September 2021 introduced the temporary self-certification medical exemption. Attached to her letter were two template forms for individuals to use to self-certify as medically exempt; one for medical exemptions and another for individuals vaccinated abroad. It is worth care home providers insisting staff use these forms rather than forms or documents that staff have created themselves as the government forms include wording giving providers some recourse should false information be provided.

The letter also provides a non-exhaustive list of examples of medical exemptions including time-limited exemptions for those with short-term medical conditions, for example, receiving hospital care or receiving medication which may interact with the vaccination.

A further letter from Claire Armstrong on 11 October 2021 advised of the formal COVID-19 medical exemption that was introduced on 1 October 2021.  It explains the system whereby individuals call 119 for a medical exemption form and submit the form for it to be clinically reviewed. Interestingly, the clinical decision on medical exemption is final and cannot be appealed. This may prove controversial especially at this moment in time when all we have to work with is a bare bones list of medical exemptions in Claire’s 15 September letter, and we had previously been promised detailed guidance reflecting the Green Book on Immunisation against infectious disease and clinical advice from the Joint Committee of Vaccination and Immunisation.

It is important to note that the temporary self-certification ends on 24 December 2021 and by that date anyone medically exempt should have obtained exemption through the formal process.

CQC regulatory approach

It was not until 4 August 2021 the CQC published a statement providing some insight into how it would regulate this rule. The CQC will be using its existing assessment and enforcement processes and will not be using a new regime. Furthermore, the CQC has said it will not be prescriptive about the systems and processes in a service to comply with the regulations.

During the registration process, the CQC will be seeking assurances from providers that their services have robust systems in place to monitor vaccinations of staff. The CQC will also be seeking assurances from new managers that they as individuals are fully vaccinated or exempt.

As part of ongoing monitoring and inspection an additional question will be added to Provider Information Returns relating to vaccinations, ‘How are you assured that those you employ and deploy within your service are vaccinated in line with government requirements?’ and the CQC will build in a similar question into its monitoring approach. It is important to note that providers will not need to show CQC inspectors the evidence of vaccination or exemption itself, but rather, evidence that it has been viewed by the service.

In relation to enforcement the CQC has said that “any enforcement activity…will be undertaken on a proportionate basis” and that the CQC will look at the level of staff vaccinated in a home “in the round” taking into account the overall service provided. Based on comments made by Kate Terroni, Chief Inspector of Adult Social Care and Alison Murray, Head of Inspection, civil enforcement action will be more frequently used for breaches in this area.

It remains to be seen the impact of this change in law, whether it will have a further impact on already strained staffing levels, whether medical exemptions will be clear cut or warrant challenge and whether the CQC will in fact take a proportionate approach. Undoubtedly, all will be watching to see how the social care sector is impacted in order to gauge the possible impact of mandatory vaccinations in the NHS.

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