The Department of Health and Social Care has launched a five week consultation looking at requiring care home providers caring for older adults to deploy only those workers who have received their Covid-19 vaccination.
The policy intention is to amend regulations making this a legal requirement for care home providers operating in England.
In its consultation document, the Department explains that while vaccination uptake rates are increasing slowly week on week, there are still a high number of older adult care homes which do not have the levels of protection needed to reduce the risk of an outbreak. As at 4 April 2021, 78.9% of all eligible workers in all older adult care homes had received at least their first vaccination. However it says the overall figure of 78.9% for staff masks significant variation at a regional, local and individual care home level.
According to the Department all eligible care homes have been visited and vaccines offered to staff and residents, with the vast majority of homes having now had repeat visits. The Department continues to offer targeted support to older adult care homes where vaccines update is low, such as in London.
It is in this context, and to help increase vaccine take up, that the Government is considering amending the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 making it mandatory for workers in older adult care homes to have a Covid-19 vaccination.
The proposed legislative change
The intention would be to insert the requirement as a new provision in the fundamental standards in Part 3 of the Regulations, it says most likely into regulation 12 (which deals with safe care and treatment) as a supplement to regulation 12(2)(h), which requires that, as part of providing safe care and treatment, providers must assess the risk of, and prevent, detect and control the spread of, infections, including those that are healthcare associated.
There are also plans to amend the Code of Practice on Infection Prevention and Control and its associated guidance, which is issued by the Secretary of State under section 21 of the Health and Social Care Act 2008 and to which providers must have regard when complying with their obligations under regulation 12 of the Regulations. Draft amendments to the Code of Practice have been published alongside this consultation (see Annex A).
The consultation document provides that due to the importance of this issue, the Government intends to change the law “quickly”.
It is also the Government’s intention for care staff in older adult care homes to be required to keep their COVID-19 vaccination status up to date.
The role of Care Quality Commission
The consultation document covers the regulator’s role in monitoring and enforcing compliance with the new regulation. It provides that vaccination rates would form part of a suite of information CQC would consider when determining which settings to inspect. Any care home that has any person over the age of 65 would fall within the regulator’s inspection remit, with care operators expected on registration and inspection to provide evidence of their care staff’s compliance with MHRA approved Covid-19 vaccine. And the usual civil enforcement options available to CQC would apply, including criminal prosecution and fixed penalty notices.
Consultation receives mixed response
Leading care home operator, Barchester Healthcare has confirmed its support for the Department’s proposals with chief executive Dr Pete Calveley commenting:
“Barchester believes the vaccination programme has transformed the outlook for the vulnerable residents in older people care homes, a significant proportion of whom will not acquire full immunity despite being vaccinated. We have not lightly introduced our vaccine policy, but we take the view that providing safe care for those we care for is our paramount obligation. As the Chief Medical Officer has said, it is a professional duty for care home staff to accept the vaccine unless there is a medical reason they should not. As time has progressed, the safety, efficacy and transmission-reduction evidence has become ever stronger, which supports our initial view. For those reasons we support the proposal by the DHSC to open a consultation on this important matter and strongly encourage other providers to support this proposal.”
The National Care Association which represents small and medium sized care providers, have cautiously welcomed the consultation on mandatory vaccinations with chair Nadra Ahmed commenting: “It is disappointing to note that government have singled out care workers despite the fact that our colleagues is the NHS also care for vulnerable citizens in acute settings”.
Care England chief executive, Professor Martin Green has welcomed the opportunity to respond to the consultation but expressed concerns about its very short timescales to submit views – the usual consultation period is 12 weeks. He also says that should the vaccine be mandatory for adult social care staff for older people “it begs the question whether it should not be mandatory for the NHS, those working in other care home settings, supported living and hospices”.
It is clear that there is not a consensus amongst care providers on whether care staff should be legally required to be vaccinated, but clearly if the proposed legislation is put in place, the Government will need to consider how this will be managed and implemented, and monitored. It will also require the Government to consider the implications for the sector’s workforce: the risks and impact on recruitment and retention of the workforce with 112,000 current vacancies and the potential for burnout that exits this year.
Under current proposals, care home managers will be responsible for checking that workers deployed in the home are vaccinated or medically exempt. This will require some form of evidence and the Government is considering the options, which may include showing vaccination status on a mobile phone app.
Have your say – and by Friday 21 May 2021
You can share your views by completing the public survey here and you can read the consultation document here.
Our content explained
Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.