The House of Lords Secondary Legislation Scrutiny Committee has published a report on the Department for Health and Social Care‘s (DHSC) proposed legislation to require all NHS staff working 'face to face' with service users to be vaccinated against COVID-19. The report raises several concerns about the quality of evidence supplied to support the proposed legislation and criticises the lack of clarity about how key expressions used in it are to be applied in practice.
Issues raised include:
• The lack of a thorough and detailed Impact Assessment to accompany the legislation. The explanatory material provided by DHSC does not include the level of detail required to enable Parliament and the wider public, including those directly impacted, to understand the effects of the legislation on the operational effectiveness of the healthcare system. While there are clear societal benefits from the vaccination programme, the increase in protection from vaccinating the last 8% of health workers may be marginal and the explanatory notes (Explanatory Memorandum) that accompany the legislation are silent on any contingency plans to cope with the 5.4% NHS staff losses which may result when the Regulations take effect in April 2022.
• Whether the benefits are proportionate. DHSC figures estimate that of the 208,000 currently unvaccinated workers in the sector, this legislation will result in 54,000 (26%) additional staff being vaccinated and 126,000 (61%) losing their jobs because of non-compliance with the requirement to be vaccinated. Given the legislation is anticipated to cause £270 million in additional recruitment and training costs and major disruption to the health and care provision at the end of the grace period, very strong evidence should be provided to support this policy choice. DHSC has not provided such evidence.
• Lack of clarity on key expressions. The Committee’s report criticises the DHSC for failing to include in the legislation practical detail about how key expressions such as 'face to face' or 'otherwise engaged' will be applied, but instead referring to guidance to be produced in the future. DHSC indicates, for example, that those who do voluntary work within the health and social care sector, and those who do maintenance work separate from providing healthcare, such as estates and facilities roles, will also need to be vaccinated.
Lord Hodgson of Astley Abbotts, Chair of the Secondary Legislation Scrutiny Committee says: “In our 10th Report on the preceding Care Homes Regulations, we said that if the Department of Health and Social Care (DHSC) decided to extend its mandatory vaccination policy, we would expect to see a more effectively argued case for it: unfortunately, the Explanatory Memorandum (EM) accompanying this instrument is just as superficial.
“DHSC has published a very broad-brush document they call an Impact Statement, but this is no substitute for a thorough Impact Assessment which should have been integral to the policy development process.
“We fully support high levels of vaccination, but DHSC is accountable to Parliament for its decisions and needs to give us a clear statement of the effect of these Regulations, the effect of doing nothing and any other solutions considered, so Parliament fully understands all the consequences of what it is being asked to agree to. This is particularly important when the NHS is already under such pressure.
“DHSC has provided no single coherent statement to explain and justify its intended policy, and this undermines the ability of the House to undertake effective scrutiny of the proposed legislation.”