As of 11 November 2021, it was a legal requirement for registered persons, namely those registered as providers and managers with the Care Quality Commission (CQC), to ensure that only people who are fully vaccinated against COVID-19 were permitted to enter a care home, unless they fell into one of the specified exemptions or there was an emergency.
However, the Department of Health and Social Care (DHSC) recently announced that it would be revoking the requirements imposed by the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 and the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) (No.2) Regulations 2022, no longer making COVID-19 vaccinations a condition of deployment in health and social care. This revocation will take effect from 15 March 2022.
The DHSC conducted a public consultation between 9 and 16 February 2022, the results of which showed that 90% of respondents supported the revocation of the legal requirement for staff in health and social care settings to be vaccinated.
In its consultation outcome updated on 1 March 2022, the DHSC states:
“Government recognises both the clear importance of engagement and communication with stakeholders as part of policy announcements and the incredible efforts undertaken across the health and care sector as part of the drive to increase vaccination levels. We do not underestimate the effort and engagement that has been taken across employers and their staff and the impact of the proposed change in approach.
However, it is right that government responds to the changing landscape of the pandemic. The latest scientific evidence shows that the Omicron variant, relative to Delta, is intrinsically less severe and that a full primary course of an approved vaccine does not provide the intended longer-term public health protection against the spread of COVID-19. However, the initial data also shows that a booster increases protection against Omicron infections and protection against hospitalisation is even higher and more durable. The intended benefits of the policy must be balanced against the existing and predicted impacts, including workforce capacity.”
Whilst the removal of this vaccination requirement is welcomed by the health and adult social care sector, many providers are already expressing their discontent with the government’s change in vaccination policy, which has already caused irreputable damage to those working in the sector. When this legal requirement came into force on 11 November 2021, it is reported that up to approximately 40,000 care staff lost their employment and it was expected that the NHS would also be affected by the loss of significant numbers of frontline staff when the same requirement came into force for NHS workers and home care staff in England on 1 April 2022.
Professor Martin Green OBE, Chief Executive of Care England, in a statement published on 1 February 2022, criticised the government’s handling of the mandatory vaccination policy:
“This policy was imposed upon the care home sector without due consideration or support. Sadly, it has had unintended consequences with staff leaving the sector, some to the NHS, thus exacerbating the pre existing recruitment and retention challenges leading to disruption to the delivery of health and care services”.
On 1 March 2022, in a press release by the National Care Forum (NCF), the impact of the vaccination policy is made clear: “Findings from a recent survey of NCF members exploring the impact of the policy in care homes and on providers has revealed that the implementation of the policy has come at very great cost – it has absorbed huge amounts of time and energy, been very costly financially and has had a very real human cost on all involved. It was, quite simply, the wrong policy at the wrong time.”
Vic Rayner OBE, CEO of the NCF, further commented: “The policy has been very damaging for the morale of all staff. It implies that our staff, who are asked to take on a considerable amount of responsibility for the health and wellbeing of residents, are not able to make decisions for themselves. Many of those who had already had the vaccine found it upsetting and belittling. The inequitable way it has been applied to care homes first has caused resentment, and worsened the perception that we are seen as a second class service in comparison to the NHS.”
“The policy itself was bad enough to implement especially when the data from the original consultation did not support the government position. We lost long term members staff who were excellent with the people they support because of this policy and we would not have chosen to remove them from our services. The people we support have been unduly affected by this because they have seen their support workers of many years leave in a short period of time. It is my belief that these support workers are lost to the industry forever, because they now won’t trust that this could not happen again.”
At Stephensons, we have a team of specialist CQC lawyers who regularly advise CQC registered providers and managers nationwide in relation to registration; compliance; enforcement action; criminal investigations; and appeals to the First-tier Tribunal (Care Standards Chamber). You can contact our specialist CQC lawyers now on 0161 696 6250.
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