Revoking the mandatory Covid-19 vaccine – has the damage already been done? – Lexology

Since our article in October 2021 there has been much change in the health and social care sector in relation to mandatory Covid-19 vaccines.

By way of background, all those working within a care home were required to be fully vaccinated (unless exempt) by 11 November 2021. A proposal to extend the scope of this regime was subject to government consultation. The consultation closed on 22 October 2021 with 65% of respondents indicating that they did not support the proposal. Despite this, just over two weeks later, the government confirmed that it would introduce regulations that require all staff who interact with patients and service users to deliver a Care Quality Commission (CQC) regulated activity, to be fully vaccinated against Covid-19 (with some limited exceptions). Among the organisations captured, were NHS services such as GP Practices and hospitals/clinics, along with those operating in the private sector. The new regulations were made on 6 January 2022 and were due to come into force on 1 April 2022. This timeline meant that unvaccinated staff were told they would require their first jab by 4 February 2022.

However, by 31 January 2022, the government announced its intention to revoke the regulations regarding mandatory vaccinations subject to undergoing a consultation. At the time it was suggested by some that the turnaround was due to the anticipated impact on the NHS workforce when the regulations were implemented. (A consideration which is said was not extended to the care home sector). The governments explanation focused on the less severe strain of Covid, Omicron, now being the dominant variant in England meaning that clinical evidence and risk factors in requiring mandatory vaccinations had now changed. After this announcement NHS England told employers to place on hold plans for dismissals (previously scheduled for 4 February) and redeployments.

The government consultation was held between 9 and 16 February 2022. In the report published on 1 March 2022, 90% of respondents supported the removal of the mandatory vaccination scheme in the health and social care sector. (With many organisations remaining committed to encouraging staff to voluntarily vaccinate). Shortly after, the government announced new regulations would come into force on 15 March 2022, which would remove the legal requirements for mandatory vaccines in care homes, which are still a requirement today, in addition to those which were due to come into force on 1 April 2022 for the wider sector.

So what does this mean? Whilst the revocation of the mandatory vaccine regulations has been welcomed by most, it has caused significant operational difficulties in an already overstretched and understaffed sector which is still recovering from the pandemic. Organisations have been required to devote substantial resources to planning and developing processes to comply with the regulations including in respect of staff dismissals (actual in care homes and planned in the wider sector). Staff members who were told in January 2022 that they were to be dismissed if they did not get vaccinated, are suddenly now able to continue on in their role. Whilst their employers were planning appropriately in line with the regulations, there are reports that these discussions have led many staff affected to consider leaving the sector in any event, particularly given the stresses experienced in the pandemic. In care homes, it is reported that the tens of thousands of staff who lost their jobs as a result of the regime, are unlikely to now return to the sector, having sought alternative employment (some within the NHS).

It is inevitable that the uncertainty and upheaval in the sector caused by these regulations will have an historic impact. Over the coming months, we will see whether the disruption to the delivery of health and care services and the impact on staffing, will lead to more care homes exiting the market and/or an increase in regulatory action by the CQC. The government figures show that 92% of the NHS workforce and 95% of care home staff are now double-vaccinated. The question remains whether achieving these vaccination levels has really protected service users and patients when considered alongside the cost to an already struggling sector. Has this regime in fact posed more risk to the delivery of care?

Article co-authored by Niamh O'Hanlon, Trainee Solicitor at CMS.

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Revoking the mandatory Covid-19 vaccine - has the damage already been done? - Lexology