As we announced in our recent blog, the Government introduced new legislation (set to come into force on 11 November 2021) requiring care home workers to be fully vaccinated against Covid-19 through the introduction of The Health and Social Care Act 2008 (Regulated Activities)(Amendment)(Coronavirus) Regulations 2021 (the “Regulations”).
However the Legal Advice Network has published an open letter it has written to the Department of Health and Social Care, identifying a fundamental issue with the legality of the Regulations in the form of Section 45E of the Public Health (Control of Disease) Act 1984 (which section was introduced by the Health and Social Care Act 2008, from which the Regulations flow).
On the face of it, Section 45C of the Public Health (Control of Disease) Act 1984 allows the ‘appropriate Minister’ (in this instance Sajid Javid MP) to introduce measures for the purpose of ‘preventing, protecting against, controlling or providing a public health response’ to an infection like Covid-19. That is the authority under which the Government passed the Regulations. However, Section 45E of the Public Health (Control of Disease) Act 1984 provides that those ‘measures’ cannot include a requirement for persons to undergo ‘medical treatment’ which is defined to include vaccination.
This may be an embarrassing oversight by the Government and we await to see how this challenge unfolds. In the meantime, the Legal Advice Network has asked the Government to confirm that the CQC will immediately instruct care home providers to “…stop telling workers they need to be vaccinated. Because they do not.”
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