Tenth Report

Contents


Tenth Report

Oral evidence

Draft Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021

Date laid: 22 June 2021

Parliamentary procedure: affirmative

We are grateful to the Minister and to the DHSC for the further information and explanations they have provided. Even so, we remain unclear about the justification for some of the policy choices underlying these Regulations and also the basis on which the department struck a balance between public health benefits and the impact on the rights of individuals. We have no doubt that the House will wish to press the Government for answers to this and many other questions in the course of the approval motion debate.

Background

1.These Regulations would make it mandatory for anyone working inside a care home, including tradespeople and service providers, to be fully vaccinated against coronavirus unless subject to medical exemption. In our 8th Report1 we criticised the explanatory material accompanying the instrument on the ground that it lacked practical detail about how the system would operate, analysis of the impact on care homes, and justification for such a strong measure. We concluded that all these elements were crucial to the House’s understanding of how the policy would work in practice, and so the House could not effectively debate the instrument until that information was made available.

2.Because so much remained unclear, we invited a DHSC Minister to give oral evidence on these Regulations: we are grateful to Mr Nadhim Zahawi MP, Minister for COVID Vaccine Deployment, for his attendance with Mr Martin Teff and Mr Stuart Miller from the Department of Health and Social Care (DHSC). A full transcript is available on our website,2 relevant comments are referenced below by the question number.

The proper role of guidance

3.We asked the Minister why key definitions were not in the instrument, or even outlined in the Explanatory Memorandum (EM). These included, for example, what amounted to “satisfactory” evidence and how a registered person could prove that they had checked it. The Minister told us that the guidance was being co-produced with the care home sector because, he said, that would lead to the best operational outcomes. (Q1)

4.The Chairman explained that we have had particular concerns during the pandemic period about guidance exceeding its ancillary function and taking on the role of legislation: sometimes also introducing inaccuracy or “mission creep”. (Q1) The Government have also confirmed that the law should be sufficiently clear that is does not have to rely on guidance or the courts for interpretation.3

5.We remain unconvinced, however, that the provisions in these Regulations meet that test:

Justification for legislating

6.We asked why legislation was necessary at all. Given the extensive NHS vaccination programme, which has been prioritising care workers, we would have expected to see some sort of analysis of the reasons why SAGE’s recommended levels of first dose vaccination for 90% of residents and 80% of staff had not yet been achieved. Mr Miller replied that “In older adult care homes, which is the 65 plus category, for residents it is 96% for first dose and 93% for second dose; among staff, it is 86% for first dose and 75% for second dose.” (Q5) He added that the statistics show a lot of local variation so that only 65% of care homes meet the SAGE guideline and that falls to 44% in London.

7.Mr Miller went on to explain that this is mainly due to the profile of the sector: 85% of care homes are small or very small and it is mainly those homes that are non-compliant (Q6). There are other reasons, for example surveys have identified that in deprived areas vaccine hesitancy is almost double the national level, and it is almost as high in London. The EM describes a list of publicity campaigns and interventions that have been conducted to increase uptake but Mr Miller said “we are into the hard yards here of driving uptake… we have done a great deal in the softer levers. Increasingly, it looks like we need more to get us where we want to be.” (Q4)

8.It became evident that the DHSC are trying to target this legislation on particular groups of people, but DHSC had not explained this or provided a sufficient explanation of who those people are. The Department undertook to provide an analysis by stratification of the market,4 and drew attention to a Public Sector Equality analysis which indicated that vaccine hesitancy is higher among those aged under 29 and in ethnic minorities.5

9.We also asked why DHSC was opting for full vaccination when SAGE recommended a minimum level of 80% of staff and 90% of residents having had the first dose. The Minister said that the SAGE advice should be treated as an absolute minimum, and higher uptake would save more lives. He said that this is “the most contagious respiratory aerosoltransmitted virus that mankind has experienced” and that the risks are “pretty high and will be exacerbated further by the winter flu season”. Mr Miller added that the onset of the Delta variant also made the case for going above and beyond the SAGE recommendation (Q4).

10.We have, however, received evidence from Four Seasons Health Care6, one of the major firms in the sector, which challenges those assertions, in particular the level of care home deaths specifically attributable to COVID-19:

“Since March 5th 2021 we have had 2 covid deaths, during which time 955 residents have passed away. Covid therefore accounts for 0.2% of all our deaths in the past 18 weeks.”

11.The argument for full vaccination would also logically include the family and friends of care home residents, but these Regulations exempt them. Mr Miller explained that this was because family contact is very important to residents’ mental health and well-being and that a number of infection prevention controls are applied to visitors. (Q7) Several of the submissions from the care home sector challenge this inconsistent approach.

Impact

12.While we of course share the concern about protecting the most vulnerable from COVID-19, the policy should be evidence-based and balanced against other considerations. We understand, for example, that care homes, particularly in rural areas, are already finding it difficult to recruit staff and so we asked why the DHSC had provided no assessment of the potential impact of the vaccination policy on the care home workforce. (QQ 8–9). The Minister explained that a sectoral analysis was in preparation but that DHSC held no data on the percentage of people who were exempt from vaccination.

13.Data on the numbers likely to refuse to accept vaccination is limited but suggest a figure of about 0.5% of the workforce.(Q5) One source estimates the size of the adult care force in England to be 1.54 million, so even half a percent amounts to several thousands.7 The Four Seasons Health Care Group letter says there are 120,000 estimated vacancies across the sector currently; so further reducing the pool of staff may affect the viability of homes and the quality of care that residents receive.

14.Mr Russell of PJ Care Ltd makes a similar point in his submission.6 He says:

“… in 2020 there were 442,888 people in care homes in England and Wales, roughly 40 to 50 percent of these are in Nursing Homes because they require nursing care. This is care that if not provided in a nursing home would be provided by the NHS, so the care sector is keeping approximately two hundred thousand people out of hospital. When you consider there are only about 141,000 hospital beds you are only just beginning to understand the importance of the care sector.”

15.Both these submissions, and one from Nadra Ahmed of the Care Provider Alliance,8 note that the sector has lost the ability to recruit easily from Europe, and that in the domestic job market care homes are in competition with the hospitality, retail and delivery sectors which may offer higher wages. Mr Russell also presents the case that larger private care providers will have more flexibility to increase wages and that will further decrease the pool for smaller homes dependent on local authority funding which increased below inflation this year. It is clear that there is deep concern in the sector about the potential side effects of these Regulations.

16.The Minister reiterated that the Impact Assessment would not be available until the end of July, but said that DHSC hoped to produce an Impact Statement before the debate. (Q8). We have not seen it and so cannot comment on whether it meets the information needs we have identified.9 The Minister acknowledged that the material should have been available alongside the instrument when it was laid. (Q12)

ECHR

17.In our 8th Report10 we said that the summary of the consultation analysis in the EM focused only on comments which supported the policy and did not explain or respond to the high level of objections (57% of over 13,500 responses, many of which stated that mandatory vaccination was contrary to their human rights or their beliefs11). We asked if DHSC had received any legal advice on this point. Mr Teff said that it had been central to formulating the list of different exemptions. (Q10).

18.We were less clear about the Minister’s assertion that exemption on the ground of religious belief would “create tensions in the workforce” (Q11). We remain of the view that this raises an important principle that should have been fully justified in the EM. The Minister undertook to reflect further on the point.

Future developments

19.The consultation analysis made it clear that this legislation is not just intended as a pandemic measure but is both permanent, and only a first step. The Minister confirmed that DHSC plans to consult about making it a duty of care or condition of deployment for the larger workforce of the NHS, the healthcare sector and domiciliary care.(Q10) He stated that “93% or 94% of front-line staff are now vaccinated with first and second doses”; that high a degree of voluntary vaccine compliance weakens DHSC’s arguments for using legislation as leverage. We would therefore expect any future regulations extending this mandatory vaccination policy to be accompanied by a much more detailed and structured justification.

Conclusion

20.It is a long-established principle that, to enable Parliamentary scrutiny, all the explanatory material to support the policy set out in an instrument should be laid before Parliament at the same time as the instrument itself. DHSC has failed to do this, leaving us unsighted about several aspects of the policy intention and its implementation. We regard this as an example of particularly poor practice.

21.We also note that aspects of the way the checking system is intended to work, described in supplementary evidence, go beyond the minimal detail set out in the instrument. DHSC should ensure that the guidance they eventually produce matches the legislation and does not imply more specific duties.

22.Following the oral evidence session, we now understand that DHSC believe the legislation will enable them to target hotspots of low vaccination uptake, but have no clear picture of who or where those hotspots are. That DHSC needs to specially prepare an analysis of the effects of mandatory vaccination on the care home sector in time for the House’s debate on the approval motion suggests that highly-relevant information has not played a significant role in the formulation of the policy. While we understand the good intentions underpinning the Regulations, we are concerned that DHSC may have taken into consideration only the policy’s health benefits in relation to coronavirus without considering other care issues and the wider costs to society. If they have, they need to demonstrate that to the House.

23.We are grateful to the Minister and to the DHSC for the further information and explanations they have provided. Even so, we remain unclear about the justification for some of the policy choices underlying these Regulations and also the basis on which the department struck a balance between public health benefits and the impact on the rights of individuals. We have no doubt that the House will wish to press the Government for answers to this and many other questions in the course of the approval motion debate.


1 8th Report, Session 2021–22 (HL Paper 40).

3 See correspondence with the Lord President of the Council and Leader of the House of Commons, the Rt Hon. Jacob Rees-Mogg MP in our 9th Report, Session 2020–21(HL Paper 45).

4 Now provided, see Appendix 1 of this report.

5 DSHC, ‘Consultation outcome: Making vaccination a condition of deployment in care homes: public sector equality duty impact assessment’ (16 June 2021): https://www.gov.uk/government/consultations/making-vaccination-a-condition-of-deployment-in-older-adult-care-homes/outcome/making-vaccination-a-condition-of-deployment-in-care-homes-public-sector-equality-duty-impact-assessment.[accessed 19 July 2021]

7 Workforce Intelligence, ‘The size and structure of the adult social care sector and workforce in England’ (July 2021): https://www.skillsforcare.org.uk/adult-social-care-workforce-data/Workforce-intelligence/publications/national-information/The-size-and-structure-of-the-adult-social-care-sector-and-workforce-in-England.aspx [accessed 19 July 2021].

9 DHSC sent us an embargoed copy of their Impact Statement in advance of its publication, but it was received too late to be taken into account in this report.

10 See paragraph 34.

11 For example we have received a submission from a Mr Le Page, a computer engineer who is occasionally called to care homes, who says he is not opposed to vaccination itself but his beliefs do not allow him to accept the current vaccines derived using stem cells from aborted foetuses. Another correspondent, Mr Bowman, objected to mandatory vaccination and the precedent being set. See the full submissions at https://committees.parliament.uk/committee/255/secondary-legislation-scrutiny-committee/publications/8/scrutiny-evidence/.




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