From 11 November 2021, it will be 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 are permitted to enter a care home, unless they fall into one of the specified exemptions or there is an emergency.
The Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 (‘2021 Regulations’) will amend Regulation 12 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (‘2014 Regulations’), which is one of the current fundamental standards monitored and assessed by the CQC.
Regulation 12 of the 2014 Regulations currently stipulates that care and treatment must be provided in a safe way for service users and to comply with this, one of the things that a registered person must do is to assess the risk of, and prevent, detect and control the spread of, infections, including those that are health care associated.
The 2021 Regulations amends Regulation 12 of the 2014 Regulations to include a further provision to require registered persons to obtain evidence from care home staff and any visiting professionals to demonstrate that they have been vaccinated with the complete course of doses of an authorised vaccine; or evidence that they should not be vaccinated with any authorised vaccine for clinical reasons. This includes care home staff; health care professionals; CQC inspectors; tradespeople; hairdressers and beauticians, for example.
There are a number of exceptions to this, which include where:
- It is reasonably necessary for a person to provide emergency assistance within the care home;
- It is reasonably necessary for a person to provide urgent maintenance assistance to the care home;
- The person is a member of the emergency services;
- The person is a friend or relative of a service user and that service user is or has been residing at the care home;
- The person is visiting a service user who is dying;
- It is reasonably necessary for the person to provide comfort or support to a service user in relation to a service user’s bereavement following the death of a friend or relative; or
- The person is under the age of 18.
The CQC have confirmed that they will not begin monitoring this until 11 November 2021, when it becomes a legal requirement. However, the CQC have made it clear that this requirement will form part of their monitoring of a care home’s compliance with the fundamental standards moving forwards, and where appropriate, proportionate enforcement action will be taken in respect of any breach of this requirement in line with their enforcement policy.
It will also be considered during the registration stage and this will include seeking assurance from new providers concerning how vaccinations and the up-to-date COVID-19 status of staff and external professionals entering the care home will be monitored. In addition, any proposed new registered managers will need to demonstrate that they are fully vaccinated or exempt and are aware of their responsibilities in respect of this legal requirement.
The Department of Health & Social Care has issued some operational guidance on preparing for this change for registered persons of CQC regulated care homes, which can be found here.
It is vital that registered providers and managers consider this guidance carefully before the implementation of this new requirement on 11 November 2021 to ensure that they understand and are fully aware of their legal responsibilities in respect of this. Whilst the relevant checks can be delegated to other members of staff acting under the registered person’s instruction, registered persons are ultimately responsible for ensuring compliance with the requirements.
The registered person (or those acting on behalf of the registered person) at the care home needs to satisfy themselves of the identity of the person entering the care home and their proof of vaccination. In respect of demonstrating evidence, the Guidance makes it clear that registered persons can choose to use the existing NHS COVID Pass service to view an individual’s vaccination status. This can be viewed via the NHS App or website, or an individual can request an NHS COVID Pass letter. However, the Guidance makes clear that a person’s NHS appointment card cannot be used as proof of vaccination status. For persons vaccinated outside of the UK, there is no guidance on this as yet.
It should also be noted that this requirement applies to people entering the ‘inside’ of the care home and as such, it would be advisable for care homes to have a check point at the entrance for this information to be checked prior to allowing any person to enter the building.
A care home will also be required to keep records documenting their compliance with this new requirement. The Guidance notes that care homes should keep a record of the vaccination or exemption status of staff members and those entering the home and the date that the status was last checked. Care homes do not, however, have to record the clinical reason behind any exemption. There is also no requirement to check a person’s vaccination status every time they enter; the care home can make any subsequent checks via their own records from the person’s previous visit. However, these records should be reviewed regularly to ensure that they are kept up-to-date. Such records will also provide evidence to the CQC of a care home’s compliance with this legal requirement at any future inspection or visit.
As registered providers and managers will be aware, it is criminal offence to obstruct the entry and inspection of a care home by the CQC without a reasonable excuse. However, the Guidance makes it clear that not granting entry to a CQC inspector or another individual in compliance with this new requirement would be appropriate and reasonable, unless they are exempt.
At Stephensons, we have a team of specialist CQC lawyers who regularly advise CQC registered provider 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 specialise CQC lawyers now on 0161 696 6250.