By Joanne Bell and Nick Chronias Joanne Bell & Nick Chronias
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Published 02 March 2022
On 1 February we reported that the Secretary of State for Health had announced that the requirement for social care and patient-facing NHS staff to be vaccinated against COVID-19 as a condition of deployment was being reconsidered and the Government’s intention was to revoke the Regulations. There then followed a public consultation which ended on 16 February. The Government’s response to this consultation has now been published which confirms that the requirement to be vaccinated will end on 15 March when new regulations will come into force which will revoke the current Regulations. This applies to both the Health and Social Care Regulations which required vaccination for all staff who have direct face-to-face patient contact with service users as part of CQC regulated activity by 1 April, as well as the Regulations imposing the requirement on CQC care homes in November 2021, that individuals entering their premises are fully vaccinated, unless otherwise exempt.
The above applies to England. Scotland and Wales have not made any proposals to make Covid-19 vaccinations compulsory for NHS workers or care home staff. Northern Ireland has been consulting on the issue, with no decision or policy made yet.
Consultation response:
The Government’s response to the consultation states that 90% of respondents supported revoking the requirement to be vaccinated with 9% opposing this proposal.
As well as the online consultation, the Government’s also discussed the proposed approach with health and social care stakeholders and states that there was a broad level of support for revocation of vaccination as a condition of deployment. Key themes from stakeholders who supported revocation include:
- Widespread dissatisfaction with the timing of communication of the intention to revoke the policy;
- Recognition of the issues already caused as a result of the implementation of the policy to date and the impact on relations between managers and staff in increasing uptake;
- Desire for clarity over the timelines for revocation and the need for certainty for staff who are currently not fully vaccinated;
- Calls for clarity on scope and timeframes for future guidance on infection prevention and control measures in health and social care settings, including the Government’s announced intention to consult on updating the Code of Practice on the prevention and control of infections and strengthening its requirements in relation to COVID-19;
- Some stakeholders, in particular those representing care homes, raised concerns over the ongoing impact on workforce capacity of vaccination as a condition of deployment remaining in place;
- Some stakeholders also raised concerns in relation to protection of patients and people who receive care or support who are particularly vulnerable to COVID-19.
There were several recommendations which came out of the consultation regarding what the government and health and care sector could take to increase vaccine uptake. The government has said it will review these recommendations and work with the NHS and social care stakeholders to engage with those who have so far chosen not to have the vaccination.
Regulation:
In its recent publication, Living with COVID-19, the Government stated that Professional bodies, the Royal Colleges, the Chief Medical Officer, Chief Nursing Officer and others consider it is a professional responsibility for health and care staff to be vaccinated. A joint statement from the General Medical Council and Academy of Medical Royal Colleges also reiterates that doctors have a professional duty to protect patients from risks posed by their health, and to be immunised against common serious communicable diseases, unless contraindicated. The Government has asked the professional regulators to review current guidance to registrants on vaccinations, including COVID-19, and to emphasise their professional responsibilities in this area.
As mentioned above, the Government has also declared its intention to consult on the Code of Practice on the prevention and control of infections to strengthen requirements in relation to COVID-19 and bring it in line with updated infection prevention and control guidance for registered providers of health and social care. The consultation has not as yet been published but the Government has said it will set out the next steps on this as soon as possible.
What does this mean for employers:
The general message is VCOD has gone away and is highly unlikely to return. In line with our experience, NHS bodies should have discontinued any processes to potentially dismiss unvaccinated staff. Many are also excluding a vaccination requirement from job specifications and other recruitment materials.
That said, revocation of the Regulations does not mean that health and social care employers who wish to introduce a mandatory vaccination policy for all (or staff in some roles) for health and safety reasons, cannot do so – however they need to justify such a policy and consider whether it is proportionate. In the absence of regulations requiring vaccination for patient/resident-facing staff, policies will need to be carefully drafted to balance effective infection control against the human rights and equalities issues which a mandatory vaccination policy might give rise to. This will be particularly important where employees reject vaccination for disability related or religious/ belief reasons. It’s not our experience that health employers are introducing their own mandatory vaccination policies.
It is also still possible to insist on vaccination for new staff provided there is justification for it (we suggest a health and safety risk assessment as a minimum). Covid-19 vaccinations would then become similar to other health clearances and dealt with in the same way. In particular this may be an attractive approach for care home providers where their current workforce are all currently vaccinated (other than those staff who are exempt). This will, of course, need to be kept under review and balanced against any future staff shortages in the sector and potential difficulties in recruiting vaccinated staff. As flagged, it’s not our experience that this approach is being used by NHS health employers given staff shortages and engagement issues.
