Laura Hannah, Partner, Stephensons Solicitors
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 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, including:
- A person providing emergency assistance within the care home;
- A person providing urgent maintenance assistance to the care home;
- A member of the emergency services;
- A friend or relative of a service user who is or has been residing at the care home;
- A person visiting a service user who is dying;
- A person providing comfort or support to a service user following the death of a friend or relative; or
- A person who is under the age of 18.
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.
It is vital that registered providers and managers carefully consider the guidance issued by The Department of Health & Social Care in relation to this new requirement to ensure that they understand and are fully aware of their legal responsibilities. Whilst the relevant checks can be delegated to other members of staff, registered persons are ultimately responsible for ensuring compliance with the requirements.
The registered person (or those acting on their behalf) needs to satisfy themselves of the identity of the person entering the care home and their proof of vaccination. 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, either 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.
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.
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 check 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 at any future inspection.