Mills & Reeve: Health and Care Update

Regulations coming into force making vaccinations mandatory for care staff

Last week (22 July 2021) Regulations were laid before Parliament following the House of Lords' approval of the draft Regulations making it mandatory for anyone working in a CQC registered care home to be fully vaccinated against coronavirus, unless subject to a medical exemption. The Regulations come into force on 11 November this year.

It is of note that prior to the debate by the House of Lords, the Government published its Statement of Impact (not Impact Assessment) with details of its estimate of the full possible cost of replacing those workers who do not meet the requirement to be double vaccinated at £2,500 per worker or a one-off cost to care home providers of £100 million.

It is also worth sharing with readers that during the course of the Lords' debate, Baroness Wheeler tabled a ‘motion of regret’:

“… this House regrets that the Regulations do not include any information about how the legislation will operate and that this will be left to guidance that will not be available until the end of July; further regrets that a full impact assessment has not been published including analysis of the number of current staff who may not comply and the potential impact on care homes if care home staff become ineligible for work because they are not fully vaccinated or medically exempt; notes that the Secondary Legislation Scrutiny Committee recommended that the debate on the instrument should be deferred until the operational guidance and full impact assessment has been published; and calls on Her Majesty’s Government to provide stronger supporting evidence for permanently requiring staff to have received both doses of the vaccine or, if they have not, to be banned from entering their workplace.”

So care providers can expect to see guidance to support the new Regulations by the end of the month.  

Comment

Care providers and their staff will need time to prepare, which is why a 16-week grace period has begun, allowing care staff who have not been vaccinated (and do not have a medical exemption and/or other legal reason they can rely on such as a protected characteristic under the Equality Act 2010) to arrange to have both doses. Staff will need to have had their first dose by 16 September at the latest to ensure they are fully vaccinated by the time the Regulations come into force on 11 November.

For further information on managing this policy transition with your HR teams, read Joanna Burrows’ blog here.

Ministers support mandatory Covid vaccinations for care home staff

Earlier this week (13 July 2021) saw ministers vote to approve by 319 votes to 246 the draft Regulations (Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021) to back plans for care home staff to be double vaccinated against Covid-19.

The Health Secretary pressed ahead with the vote despite concerns that the policy could lead to care staff shortages in the social care sector. The Regulations are expected to be signed off next week, unless the House of Lords decide not to pass them.

It is anticipated that the Regulations will come into force in early November 2021 – 16 weeks after the Regulations are passed – and apply to Care Quality Commission registered care homes in England only. This will mean that anyone entering residential accommodation providing nursing or personal care in a care home must be double vaccinated, unless they are clinically exempt or meet one of the exemptions outlined in the Green book.

While there is wide spread concern within the sector to adopting a mandatory vaccination policy, in the absence of a legal challenge, care homes across England now need to implement procedures to ensure that they are not in breach of the Regulations come November. We expect that guidance will be published shortly to support the sector with its preparation.

In this blog, we highlight some of the key steps that care providers can take to get their workforce ready:

• Inform your staff about the approved Regulations, the need for a booster vaccination expected in the autumn, and the time scales by which they need to have had the double vaccination. Inform staff that they will need to provide evidence of vaccination and let them know what forms of evidence will be accepted and when the evidence needs to be produced by. It is important that the messaging around what is required from care home staff is clear and accessible.
• Care home providers should continue to actively engage and consult with their staff, encouraging them to be vaccinated. Staff who do not provide their evidence should be informed of the risks if the evidence is not produced by the end of the 16 week period and that they may not be able to continue in their role.
• For staff who cannot produce the necessary evidence, you will need to commence consultation in good time; take into account their notice period which for some staff may be 12 weeks so some employers may need to give notice in August. You should explore with staff their reasons for not being vaccinated. Some staff may have a clinical exemption. Other staff may have valid grounds to reject the vaccine if protected by discrimination legislation, including for religious belief or health-related reasons, so allowances will need to be made for those with particular protected characteristics.
• For those staff that object to being vaccinated and where no clinical exemption or valid legal ground for objecting exists, you should discuss and explore alternatives to dismissal. Redeployment to roles outside of care homes should be considered although such roles are likely to be extremely limited. Ultimately, some care home staff are likely to be dismissed as a result of this new legislation so it is important such cases are handled carefully and sensitively. In that context, providers will need to ensure that a fair and reasonable procedure is followed to avoid legal challenge.
• Develop systems to capture and store evidence of staff vaccinations, plus the booster vaccination expected in the autumn, or any clinical exemptions or other valid legal grounds.
• Develop systems to capture and store evidence of vaccinations from visitors, or any clinical exemptions or other valid legal grounds.
• Develop systems to capture and store evidence of visitors who are exempt from the new requirements (including someone under the age of 18, someone carrying out urgent maintenance or friends/relatives of a service user who is or has been residing in the premises).
• Ensure staff who work in recruitment, HR or who will be involved in collating evidence understand the legal requirements and clinical exemptions. Update any recruitment documentation so the new requirements around vaccination are clear from the outset to job applicants.
• Update your care home policy on vaccinations.

If you require support with managing this policy transition with your HR teams do get in touch with us.

Joanna Burrows

The Health and Care Bill

The Government's new Health and Care Bill is the first major piece of primary legislation since the Health and Social Care Act 2012. It builds on the proposals for reform made in NHS England’s Long Term Plan to make the NHS less bureaucratic, more accountable and more integrated, particularly in light of the Covid-19 pandemic. A number of the proposals mirror those set out in the NHS White Paper. 

Over the coming weeks our team of health and care lawyers will be unpicking some of the details of the Bill. Ahead of that more detailed analysis, we’re sharing our first thoughts in an article you can read here.

With all parts of England now covered by one of the 42 Integrated Care Systems and ahead of ICSs becoming statutory in April 2022, Mills & Reeve has launched an ICS Hub. Whether it’s a provider collaborative or a place-based partnership, our ICS hub page includes a wide range of legal resources to support you. We will be adding new resources over time but in the meantime, do take a look.

ICS development and the employment commitment

Rebecca Pallot walks through the key points from NHS England and NHS Improvement’s recently published guidance document on supporting the NHS workforce throughout the development and transition towards statutory Integrated Care Systems. You can read her article here.

Update: Integrated Care System development

The publication of NHS England and NHS Improvement’s Design Framework for Integrated Care Systems ahead of draft legislation, sets out minimum standards and expectations, and a timetable for development over the course of the transition period in 2021/22 and before ICSs become statutory bodies in April 2022.

For commentary on the new Framework document, read our article.

New EAT cases on flexible hours and discrimination

Two recent cases from the Employment Appeal Tribunal illustrate some potential pitfalls when women with childcare responsibilities are asked to move away from fixed working hours. 

In order to establish a claim for indirect sex discrimination in these circumstances, the claimant needs to establish two things:

• That the employer has applied a “provision, criterion or practice” (PCP) to a number of staff members, including the claimant; and
• That the PCP puts the claimant and other women at a “particular disadvantage” when compared to male workers

If the claimant passes both these tests, the employer is required to justify the imposition of the PCP by showing that it is “a proportionate means of achieving a legitimate aim”.

To find out more about these two cases, head over to our sister blog, hrlawlive to read the full post here.

New report finds NHS and social care staff burnout at ‘emergency’ levels

The Health and Social Care Select Committee’s new report from its inquiry into workforce burnout and resilience in the NHS and social care makes clear that burnout is a “widespread reality” and has negative effects on staff mental health, impacting staff and patients.

Against a backdrop of workforce shortages, funding pressures and reconfiguration of services, concerns about the morale of the NHS and social care workforce are not new. The report cites that prior to the pandemic, one third of the doctors who responded to a survey published by the BMJ in January 2020 were described as burntout.

The size of the problem

The report finds that workforce burnout across the NHS and social care has reached an “emergency” level and poses an “extraordinary dangerous risk” to the future functioning of both services. Only a total overhaul of workforce planning can provide a solution. Planning to date has been led by the funding available to both health and social care rather than by demand and the capacity required to service demand.

The report explains that there is “no accurate, public projection of what health and social care require in the workforce for the next five to ten years in each specialism” and without that level of detail, the shortages in the health and care workforce will endure to the “detriment” of both the service provision and the staff who currently work in the sector. It said that moving to annual, independent workforce projections would provide the NHS, social care and Government with the clarity required for long-term workforce planning.

Key recommendations from the report

Understanding the scale and impact of workforce burnout in the NHS and social care

• DHSC extends the NHS Staff Survey to cover the care sector – and in addition, the NHS Staff Survey and any social care equivalent includes an overall staff wellbeing measure, so that employers and national bodies can better understand staff wellbeing and take action based on that understanding.

• Integrated Care Systems (ICSs) be required to facilitate access to wellbeing support for NHS and social care workers across their systems, and that they are accountable for the accessibility and take-up of those services.

• The level of resources allocated to mental health support for health and care staff be maintained as and when the NHS and social care return to ‘business as usual’ after the pandemic; and that the adequacy of resources allocated to that support be monitored on a regular basis.

Workplace culture

• DHSC develops a strategy for the creation of Freedom to Speak Up Guardians in social care.

• NHS England undertake a review of the role of targets across the NHS which seeks to balance the operational grip and the risks of inadvertently creating a culture which deprioritises care of both staff and patients.

• DHSC work with stakeholders to develop staff wellbeing indicators, on which NHS bodies can be judged.

• WRES data be made part of the ‘balanced basket of indicators’ we suggest for Integrated Care Systems, with the result that they become accountable for progress across their domains.

• Adult social care have its own People Plan, which includes parallel commitments to those for the NHS on diversity and inclusion.

• The Department develops an NHS and social care national policy framework around migration to support national and local workforce planning, and identify the balance between domestic and international recruitment in the short, medium and long-term.

Bringing together the post-pandemic response with better workforce planning

• Health Education England publish objective, transparent and independently-audited annual reports on workforce projections that cover the next five, ten and twenty years including an assessment of whether sufficient numbers are being trained. And importantly that such workforce projections cover social care as well as the NHS given the close links between the two systems.

Commenting on the report, the Rt Hon Jeremy Hunt MP, Chair of Health and Social Care Committee, said:

“An absence of proper, detailed workforce planning has contributed to this, and was exposed by the pandemic with its many demands on staff. However, staff shortages existed long before covid-19.”

“Staff face unacceptable pressure with chronic excessive workload identified as a key driver of workforce burnout. It will simply not be possible to address the backlog caused by the pandemic unless these issues are addressed.”

“Achieving a long-term solution demands a complete overhaul of workforce planning. Those plans should be guided by the need to ensure that the long term supply of doctors, nurses and other clinicians is not constrained by short-term deficiencies in the number trained. Failure to address this will lead to not just more burnout but more expenditure on locum doctors and agency nurses.”

The latest on working time and holiday pay

The risk of large backdated claims for statutory holiday pay has been with us for some years. In our latest article, we explain some recent developments which could help employers assess their risk more accurately. 

Update: Government guidance on sleep-ins and payment of National Minimum Wage

Latest update provides helpful guidance to the care sector on what constitutes working hours for which the National Minimum Wage (NMW) must be paid.

The Government has updated its guidance on what amounts to working time for the purposes of calculating the NMW for sleep-in shifts, with a number of examples added to clarify the position in light of the Supreme Court’s Royal Mencap judgment published on 19 March 2021 (you can read our blog here).

The Royal Mencap “sleep-in” decision confirmed that UK care providers do not have to pay their staff for every hour of a sleep-in shift to comply with the NMW Regulations, and it is only time spent awake for the purposes of performing work that should be classified as working time.

The guidance explains that for workers performing sleep-in shifts they are:

• contractually obliged to spend a shift at or near their workplace, usually at night but it could be during the day;
• expected to sleep for all or most of that shift; and
• woken if required to undertake a specific work activity.

It confirms that workers are only entitled to be paid for those hours of a sleep-in shift where workers are awake for the purposes of working. A set of sleep-in examples have been set out based on the principles outlined by the Supreme Court to help illustrate how those principles might apply to particular scenarios. The relevant examples are set out in the category marked “Special situations” in the updated guidance.

Key takeaway

A couple of points are worth noting from the updated guidance. Each sleep-in case may be different depending on the individual circumstances, requiring a careful look at what the worker’s employment contract provides for in relation to pay for sleep-ins and what is actually happening in practice as this may have changed over time. The guidance emphasises that in the case of a worker woken frequently during sleep-in shifts, contrary to the original expectation, the worker would likely cease to be a sleep-in worker and the shift would be a waking night entitling the worker to be paid for all hours of the shift. It is therefore important that care providers keep under review the number of disturbances when workers are performing sleep-ins and ensure that the contractual position reflects the situation on the ground.

Joanna Burrows

The Queen’s Speech: something for everyone or not?

Unveiling the Government’s plans, the Queen announced plans to bring forward legislation to “empower the NHS to innovate and embrace technology. Patients will receive more tailored and preventative care, closer to home [Health and Care Bill]. Measures will be brought forward to support the health and wellbeing of the nation, including to tackle obesity and improve mental health. Proposals on social care reform will be brought forward.”

As always the devil is in the detail and readers might like to dip into the briefing notes (pages 16-29 cover Beating Covid and Backing the NHS).

Social care

We are told that “the Government is committed to improving the adult social care system and will bring forward proposals in 2021”.  

The Prime Minister said “Later in the year we will bring forward proposals to reform adult social care so that every person receives the dignity and security they deserve”.

This is a huge disappointment to many, particularly given the fact that we are already in May.    

Social care was tucked in underneath the heading of Beating Covid and Backing the NHS in the briefing notes…..

A number of social care organisations have expressed concern and disappointment that meaningful social care reform has been “kicked into the long grass” with the absence of a Social Care Bill. Commenting on the Queen’s Speech, Professor Martin Green, Chief Executive of Care England said it was a missed opportunity, explaining that “the Health and Care Bill which has a focus on the NHS, is not the vehicle to deliver...the system change to ensure the future sustainability of the [care] sector”.

The National Care Forum published, ahead of today’s state opening of Parliament, an eight-point plan for reform of social care calling on the Government to put social care at the centre of policy planning and design a social care system that is person centred, fair and fit for the future. It calls on investment in the workforce, future proofing social care with measures to encourage innovation and digital transformation, with technology a key element in the reform plans. Its eighth point is a commitment to ensure integrated health and care systems work for social care.

Health and Care Bill

Our previous blogs and briefings have covered this extensively.  Five main benefits of the Bill and four main elements are set out in the briefing notes.

With a new Health and Care Bill planned for the sector, there is a commitment to include regulatory oversight of how social care is commissioned and delivered.

Mental Health

The Government says that it will respond to the recent consultation on reform to the Mental Health Act later this year, which will “pave the way for future legislation.” We know that the consultation itself said that a Bill would be introduced “when Parliamentary time allows” so will that be 2022?

Patient Safety

Finally, putting the Healthcare Safety Investigation Branch on a statutory footing to deliver a fully independent national body to investigate healthcare incidents. For the history and background to this you can read our earlier blogs here and here.

Technology

Specific mention is made of embracing technology. That makes our current series of webinars highly topical! Mills & Reeve and ORCHA are presenting a series of interactive online webinars on health, wellbeing and medical device apps covering key legal, regulatory and commercial issues. You can register your interest here.

What do you think?

Jill Mason