On 6 January 2022, the Government made new legislation approved by Parliament, which
amended the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (“the
2014 Regulations”).
The document states that rules “will also apply where a regulated activity
is delivered through agency workers, volunteers, locums, students or trainees, or contracted
to another provider. Compliance will be monitored and enforced by CQC”
CQC-regulated activity includes:
• personal care
• accommodation for persons who require nursing or personal care
• accommodation for persons who require treatment for substance misuse
• treatment of disease, disorder or injury
• assessment or medical treatment for persons detained under the Mental Health Act 1983
• surgical procedures
• diagnostic and screening procedures
• management of supply of blood and blood-derived products
• transport services, triage and medical advice provided remotely
• maternity and midwifery services
• termination of pregnancies
• services in slimming clinics
• nursing care
• family planning services.
• Crucially, it also states:
The requirements would not apply to those employed, or otherwise engaged, in the provision
of a CQC regulated activity if they do not have direct face to face contact with patients and/or
services users/patients. For example, those providing care remotely, such as through triage
or telephone consultations or those in managerial roles working on sites separate from
patient areas would not have direct face to face contact and so registered persons could
continue to deploy them in those roles as usual
AND
Contractors, suppliers and bank and agency workers
The registered person is required to demonstrate that they have systems and processes in
place to evidence and monitor that all independent contractors, agency or bank staff who
have face-to-face contact with patients and/or service users and who are deployed, as part
of CQC regulated activity, are fully vaccinated against COVID-19.
If applicable, employers should work with independent suppliers of staff to agree and plan
any steps and update contractors to ensure the employer can comply with the requirements
of the regulations.
Ultimately, the legislation imposes the obligation of vaccination on the Trust to determine any person who comes into contract with patients as part of their job or performs a CQC defined role will need to be vaccinated unless exempt, and the enforcement of this and the breach of the law will sit with the Trust.
The methodology to determine this is to review any commercial contracts or PO’s with specific Terms and Conditions –most, if not all members who have contracts will have agreed to comply with a Clause which obliges (paraphrased) all Contractors to comply with any Trust policy or legislative change throughout the term of the contract, this is most likely what will be referred to.
As with all legislative changes that may affect your business, members should seek their own legal advice. BIVDA has sought legal counsel for a few general points with regard to employment law and when these are returned, we will advise if appropriate. We are continuing with discussions to gain further understanding and will update members accordingly.
At the External Affairs working party, it was agreed that BIVDA would not provide a position statement on behalf of BIVDA members, as the consensus was that there are clear provisions for members and that these issues are specific to company requirements.
However, BIVDA continues to support members individually, by sector and collectively and will assist any member who needs support and advice on this issue. Please contact Helen directly.
