Regulations published for mandatory vaccination of care home workers

The government presented draft regulations to Parliament on 22 June 2021 for care homes to require evidence from workers and others visiting care home that they have had the up to date “complete course of doses” of a coronavirus vaccination treatment.

This does not appear limited to care homes with elderly residents over 65 as trailed by the government, but applies to all care homes providing accommodation together with nursing or personal care, though excluding hospitals and children homes.  (‘any surrounding grounds’ of care home premises are excluded, so garden maintenance workers, for example, avoid the requirement.)

There is no reference to who is ‘deployed’ anywhere. That has, of course, been no more than government spin. Anyone who works in a care home is at that point deployed in it. The only time where someone works might be considered is in the context of whether dismissal is required or if the employer has work opportunities other than in a care home. Councils and public sector employers might have such opportunities (until such requirements are extended of course), but that is very unlikely in the private sector where dismissal is almost certain to result for the unvaccinated.

Exceptions to mandatory vaccination

The EXCEPTIONS are:

(a) the residents themselves;

(b) “clinical reasons” for exemption;

(c) it is reasonably necessary to provide emergency assistance;

(d) it is reasonably necessary for urgent maintenance assistance with respect to the premises;

(e) attending in the execution of duties as a member of the emergency services;

(f) a friend or relative of a resident;

(g) visiting a dying service user ;

(h) it is reasonably necessary to provide comfort or support following the death of a friend or relative; or

(i) anyone under the age of 18.

Gaps in the theory of protection

We will not here go into the arguments about who is being protected, from what or what is achieved if the Covid-19 treatments are effective, or any of the various reasons not to want them.  We note in passing, however, there is no exception on grounds of any protected characteristic, such as religious or philosophical belief (e.g. those who object to treatments developed or manufactured through use of foetus or animal products).

However, the government has to make decisions about how wide it is able to extend the requirements for vaccination. Its judgement is to leave a huge gap in the ‘vaccine’ protection supposedly required in a response to a current ’emergency’ (a health emergency remaining the basis for authorisation of experimental novel treatment still under trial and being mandated).

That huge gap in protection is provide by exempting children under 18 and friends and relatives who can visit the home, straight from the supermarket or office etc.  Additionally, the residents don’t have to be jabbed even if no medical exemption applies. With such gaps, what protection is achieved exactly by just the staff being required jabbed?

On the other side of the coin, however, the requirement up to date Covid jabs is extended far wider than the staff. The following are examples of unjabbed people who can NOT be permitted to attend a care home:

  • any doctor or nurse other than as an emergency response
  • any worker or volunteer other than as an emergency response
  • anyone who would like to visit the care home to inspect or check it is suitable before they or their relative takes up residence
Other points of note about the regulations

They will come into force 16 weeks after they’ve been made.

They are for England only. The other nations may of course follow suit even if so far they’ve not said they will.

One wonders what plans are in place for a wider series of mandated vaccinations, not just against SARs-CoV-2.

Unlike all other Coronavirus regulations, these do not rely on being an emergency response. They are implemented as amendments to the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and a full impact assessment of the costs and benefits of these regulations is required. That assessment has not been published, although a general decision has clearly been made already that benefits outweigh costs. When will the assessment be made published?

The decision to use regulations may open legal challenge on the basis the Minister’s authority to is restricted by a requirement to act in accordance with the Human Rights Act i.e. to justify the interference with human rights caused by these regulations as being necessary and proportionate. If this law were introduced as primary legislation, by an Act of Parliament, such challenge would not be possible. Cynically, one might imagine the government is seeking to establish a precedent of getting mandatory vaccines achieved by the stroke of a minister’s pen, as have been all Coronavirus regulations to date. If the government achieves that precedent, it may become much easier and very much quicker to introduce mandatory vaccination across the whole of society, arguably the only brake being political and civil resistance.

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