Regulation: Clinicians refusing coronavirus vaccination

THERE has been much speculation in the national and medical press about the percentage of healthcare staff able or willing to accept the offer of a Covid-19 vaccine. Reports indicate a variable uptake across areas of the UK for different groups of professionals. There are also reports of some organisations considering whether to make vaccination mandatory in order to protect patients and colleagues. In June 2021, the UK Government announced that it will launch a public consultation on whether or not to make Covid-19 and flu vaccination a condition of deployment in healthcare settings in England.

 

The announcement came in conjunction with a decision by the Department of Health and Social Care (DHSC) to make it mandatory that anyone working in a CQC-registered care home in England for residents requiring nursing or personal care must have two doses of a Covid-19 vaccine, unless they have a medical exemption.

The BBC has reported that the Scottish Government has no plans to make the vaccination of care home workers compulsory in Scotland.

Dr Chaand Nagpaul, BMA council chair, commenting on the announcement of a wider consultation, said: "Mandatory vaccination for NHS staff is an incredibly complex issue that raises many ethical, legal and practical questions. Therefore, it is only right that any Government proposals are put out to a proper consultation, during which time staff and representatives are given an opportunity to contribute."

NHS employers, clinical leaders and contracting bodies have given a clear message that health and social care staff have a professional responsibility to get vaccinated, and their hope is that most will voluntarily take up the offer. A recent statement by the Academy of Medical Royal Colleges in support of the UK vaccination scheme has reinforced that the evidence on vaccine safety and efficacy is clear-cut, and it highlights the responsibility clinicians have to protect patients and colleagues in their interactions.

MDDUS has logged a high volume of member contacts since the start of the pandemic, asking for advice on potential medico-legal and regulatory risks around a range of Covid-related scenarios. These have included some from clinical leads/managers with concerns over their responsibilities to mitigate risk to patients when a colleague declines a vaccine, and from individual members who plan to decline coronavirus vaccination for a variety of different reasons.

Mandatory vaccination

Up to now, when it comes to vaccination, the NHS appears to have opted for a more ‘carrot’ rather than ‘stick’ approach, with Public Health England providing a guide for healthcare workers, emphasising the importance of being vaccinated. Having said this, there are likely to be concerns about the health and safety of patients being treated by healthcare workers in high-risk environments, with an expectation that staff in these circumstances should have a reasonable justification for refusing vaccination. A contractual requirement for some healthcare roles could be implemented in the future, particularly if evidence continues to mount on the transmission-reduction effect of vaccines.

There are a number of ethical and legal hurdles that would need to be overcome in relation to imposing mandatory vaccination, and it seems likely that in the majority of settings a risk management approach will be adopted instead. Those unable to take or refusing the vaccine may be required to participate in an assessment, balancing specific risks to themselves, colleagues and patients, in turn leading to necessary changes in roles to preserve safety. We would expect that clinical leaders would take the lead in such assessments, and it will be important to ensure staff confidentiality is protected.

Regulatory risk

In terms of regulatory risk, the General Medical Council (GMC) advises in Good medical practice that: “Doctors should be immunised against common serious communicable diseases, unless this is contraindicated”.

The GMC also states on its ethical hub: “While there is no absolute duty to be vaccinated against any particular disease, there is a potential risk of inadvertently spreading coronavirus to vulnerable patients. This weighs in favour of doctors being vaccinated unless there are good reasons why it isn’t appropriate in your individual circumstances.”

"Reasonable" refusal

Clinical leads should be prepared to have a one-to-one discussion with a clinician refusing a vaccine in order to understand the reasons behind refusal and whether further reassurance or information could be provided to alter that decision. NHS England has found that uptake has been shown to improve by 60-70 per cent following such discussions.

“Reasonable” justification for refusing a vaccine might include:

• vaccine is contraindicated for them
• wish to assert the right to bodily autonomy
• religious beliefs that prohibit the consumption of an element of the vaccine, which may amount to a protected characteristic under the Equality Act.

A documented and thorough risk assessment is necessary in any of these cases, with the outcome determined over time by the evidence on vaccine effect, the clinician’s role and the prevailing work environment.

Refusing vaccination, without a "reasonable" justification, could in some cases leave a clinician vulnerable to having their role redefined after risk assessment and/or their employing organisation giving serious consideration as to whether this constitutes a conduct issue.

NHS England has published guidance for HR directors on how to support Covid-19 vaccine uptake in frontline staff and this may also be instructive for other employers, by way of a general approach to having sensitive conversations with hesitant or reluctant staff.

Employer obligations

It is also important to note here that a number of requests for MDDUS advice have come from employing members (often GP partners or GDPs) asking how to respond when employees (clinical or non-clinical) are unable to have or refuse vaccination. MDDUS employment law advisers have prepared guidance on the latter to assist with their obligations.

Action points

• Consider potential risks to patients in your area of work against ongoing and emerging evidence for the efficacy and risk reduction benefits of coronavirus vaccination.
• Clinical leads must continue to mitigate the potential risks of coronavirus to patients in the healthcare setting.
• Healthcare professionals refusing vaccination should participate fully in any risk assessments and adopt reasonable mitigating controls deemed necessary for patient safety.

Liz Price is senior risk adviser at MDDUS