Revoking vaccination as a Condition of Deployment: FAQs as at 3 March, 2022

The Government has, on 1 March 2022, confirmed in its response to the Consultation on revoking the Mandatory Covid Vaccination requirement, that the revocation will go ahead.  But, what does this mean now for providers across the health and social care sector in England?

1. When will the revocation of the Mandatory Vaccination Requirement in the Regulations take effect?

The government have confirmed that the revocation of the Mandatory Vaccination Requirement for both care homes and the wider health and social care sector will take effect on 15 March 2022.  It is understood that the revoking regulations will be passed using the Negative procedure under which the regulations become law on the day they are laid before Parliament.

2. What measures are being taken, instead, to encourage vaccination?

When the Secretary of State initially announced the intention to revoke the Mandatory Vaccination Requirement, on 31 January 2022, he indicated that, in its place, he would be taking three steps:  (1) writing to professional regulators asking them to review their guidance to registrants on vaccinations, and to emphasise their professional responsibilities in this area; (2) asking the NHS to review its policies on the hiring of new staff and the deployment of existing staff, taking into account their vaccination status; and (3) asking the DHSC to consult on updating the code of practice (presumably the ‘Health and Social Care Act 2008: code of practice on the prevention and control of infections’ which applies to all CQC regulated providers).

3. What steps have the professional regulators taken to review their guidance to registrants on vaccinations?

The GMC, NMC, and HCPC have all issued statements reinforcing the importance of Covid vaccination and encouraging registrants to be vaccinated. However, although these statements reinforce that registrants do have professional obligations to look after their own health, it appears that a failure to be vaccinated will not, in itself, result in Fitness to Practice proceedings being taken against individual clinicians.

4. What steps have been taken in terms of the NHS reviewing its policies on the hiring of new staff and the deployment of existing staff taking into account their vaccination status?

We are not aware of what communications there have been between DHSC and the NHS regarding this. However, the NHS Confederation’s response to the consultation on revocation of the Mandatory Vaccination Requirement warned against making vaccination a condition of future recruitment.  The government‘s response to that consultation, on 1 March 2022, made no further reference to this proposal.

5. What is happening in terms of the proposed strengthening of the Code of practice on the prevention and control of infections?

The government’s response on 1 March 2022 stated that it will consult on updates to the Code of Practice “as soon as possible“. 

6. Will the updated Code of Practice on the prevention and control of infections include any expectations around vaccination of staff?

It remains to be seen what expectations the draft updated Code of Practice sets, and whether this will include any expectation that staff, or at least some groups of staff, will be vaccinated.  However, the government’s response to the consultation on revocation of the Mandatory Vaccination Requirement on 1 March 2022 stated that it intends to consult on updating the Code “to strengthen the requirements in relation to COVID-19 and bring it in line with the updated infection prevention and control guidance for registered providers”.

7. What should providers do with the data they hold regarding the vaccination status of staff?

Providers will need to review the expectations set out in the updated Code of Practice, as well as their own internal policies on the vaccination of staff and the provision of safe care and treatment, to consider whether they still have a legitimate reason to require staff to be vaccinated and to request and retain this information in relation to all or some of their workforce.  Providers will need to consider appropriate retention periods for data already collected as part of the Mandatory Vaccination Programme.

8. What should be done in relation to workers supplied by third-party contractors?

At present it is probably a “wait and see” what the strengthened Code of Practice on infection control looks like and what further conditions this may impose on healthcare providers (and others working on their sites).  It may be that healthcare providers want to write to their third-party contractors reminding them of their duties in this regard.

9. Will patients be able to insist that they are only treated by staff who are vaccinated?

Subject to the requirements of the updated Code of Practice on infection prevention and control, providers will not need to ensure that staff are vaccinated. Instead, providers will need to discharge their health and safety obligations towards patients which will mean ensuring they comply with the provisions of the updated Code of Practice, or protecting people from the risk of infection in another, equally effective way. 

If you would like to discuss this topic in more detail, please contact:

• Carlton Sadler
• Jodie Sinclair
• Alastair Currie
• Carly Caton
• James Cassidy