Essential reading for care home operators preparing for mandatory vaccinations rules
The DHSC published on 4 August 2021 its operational guidance to support the implementation of the new regulations making vaccinations mandatory in CQC registered care homes in England. It provides some helpful clarity on the steps care home managers now need to take to implement the regulations, which from 11 November will require most people aged 18 and over entering care homes to be vaccinated, unless they have an exemption. However, there remain a number of unanswered questions, including the three outlined below.
The process for establishing medical exemptions from the requirement to be vaccinated is an important issue for care providers. The operational guidance explains:
“There will be a clear process for staff to follow if they think they may have a clinical reason to be exempt. This process will be aligned with certification for domestic events, exemptions from self-isolation for confirmed contacts and travel. Guidance for certification is being developed and we will add a link to this guidance here as soon as it’s published.
We will be producing separate guidance for clinicians, which will align with guidance for vaccines certification in other public settings. This guidance will help clinicians to verify exemptions.”
A recent update (30 July 2021) to the Green Book on immunisation against infectious disease (COVID-19: the green book, chapter 14a) and clinical advice from the Joint Committee of Vaccination and Immunisation (JCVI) indicates a further narrowing of the those individuals who cannot be vaccinated.
Collective redundancy consultation
The obligation to consult collectively could be triggered in a number of circumstances when seeking to implement the requirements of the regulations, particularly in the case of larger care home providers. However this is not addressed in the guidance.
For example, if a care home provider wishes to impose changes to contracts of employment to introduce a term that makes vaccination a condition of employment, that would normally trigger the requirement to consult collectively, if at least 20 staff are involved at a single establishment. Equally, there is a possibility that these requirements could also be triggered if the care home provider is contemplating the dismissal of an equivalent number of workers within a 90 day period for refusing to get vaccinated.
The publication of the operational guidance coincided with the announcement by the JCVI that all 16 to 17-year-olds should now be offered a first dose of Pfizer vaccine. It remains to be seen whether the Government will extend the scope of the regulations to reflect the wider availability of vaccines for this age group.
A few observations on the guidance
- Individuals vaccinated by the NHS in England can demonstrate their evidence of vaccination by using the NHS App, the NHS website – NHS.uk or the NHS Covid Pass letter. An appointment card cannot be used as proof of vaccination status. For individuals vaccinated outside of the UK, the DHSC are working on a solution and will provide further guidance.
- Booster doses are not currently included in the regulations but care home managers are advised to encourage staff to take up booster vaccines if eligible. The guidance says that the regulations may be amended to include booster doses.
- A risk assessment should be undertaken for those who are exempt from vaccination to reduce risk of transmission. The guidance suggests that this might include a change of duties, noting that those that are exempt from vaccination may also be in the clinically extremely vulnerable category.
- Registered persons (or those acting on behalf of the registered person) will need to keep a record of:
- the vaccination or exemption status of staff members and the date that the status was last checked
- the vaccination or exemption status of those entering the care home unless exempt and the date that the status was last checked
There is no requirement for registered persons to record the clinical reason behind the exemption - they should only record whether a person is medically exempt or not.
It is only on the first occasion that an individual entering a care home needs to demonstrate vaccination status with the registered person recording their status on the care home’s local system (for example IT system, paper file etc). All subsequent checks of individuals who have previously demonstrated vaccination status can be carried out via the records which will state the date and time the individual proved their status.
Care home managers can decide to check more often, but there is no requirement to do so. But records should be checked regularly to ensure that they are up to date.
The registered person will be able share these records with CQC to demonstrate they have checked third party medical exemptions. The regulations expressly state that a care home may process information about vaccination or medical exemption status, but this must be done in a way that is consistent with data protection law.
- On inspection, CQC will look for evidence to confirm systems and processes are in place to comply with the requirement. So, care home managers will not be required to show a record of the evidence itself, but will need to provide assurance that systems and processes are in place to ensure that individuals who enter the premises are fully vaccinated or exempt.
- As to ongoing monitoring, CQC propose to add the following question to the Provider Information Return (PIR): ‘How are you assured that those you employ and deploy within your service have had their mandatory vaccinations?’
However the guidance says that “Registered persons may choose to make a record of the evidence they have seen for their own internal staff employment record keeping.” If care home managers choose to adopt this approach, they must be ensure data protection compliance in accordance with their GDPR duties.
- The guidance includes helpful information on visiting professionals such as contractors to ensure compliance with the requirements under the regulations. The guidance suggests that care home managers may decide to include a requirement in any contract for the provision of services that individuals need to be vaccinated prior to entering the care home. There is further helpful guidance on issues concerning urgent maintenance assistance with respect to the care home or emergency assistance. The regulations provide an exemption where it is “reasonably necessary”. Managers will be expected to keep a log of all urgent maintenance work during which people entered the home without showing proof of vaccination or medical exemption, and a short description of the incident for record keeping purposes.
- As to healthcare professionals who visit care homes, the guidance explains that NHS England and Improvement will issue specific guidance so that they are aware of the implications of the regulations.
Assuring the CQC of your governance processes
In addition to the Department’s operational guidance, the CQC published a statement on its role on the compulsory vaccination of people working/deployed in care homes. The statement outlines the regulator’s approach to registration, ongoing monitoring, inspection and enforcement.
Note that compulsory vaccination forms part of the fundamental standards and will be monitored and enforced in appropriate cases.
It is important that care providers have robust assurance processes in place by November to demonstrate its compliance with the regulations as any non-compliance is likely to risk enforcement action.
According to the CQC, it will not begin monitoring this until it becomes a duty in November.
If you would like to discuss the operational guidance do get in touch with Amanda Narkiewicz.