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Gov ban on movement of agency care staff follows first high court challenge on COVID hospital releases to care homes

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Staffing agencies and recruiters of temporary staff placed in care homes will be scrambling to put their concerns forward by Monday, 23 November, midday, as the government holds a consultation, only launched last Friday 13 November, which could propose a ban on temporary staff moving between care homes.

“Stopping staff movement between different care settings and between health and care settings is critical to minimise the risk of infection of COVID-19,” said the government in a statement.

The government consultation could be peppered with outcry from agencies and their staff on grounds that agency workers are a scapegoat. This week, a grieving daughter who lost her father to Covid-19 in an Oxfordshire care home won the first stage of a high court challenge against the government’s policy of discharging hospital patients into care homes without tests.

A Guardian news report stated: “Dr Cathy Gardner has been granted a full hearing in her case which alleges the government misled the public by claiming to have “thrown a protective ring” around care homes, and that policy failure “led to large numbers of unnecessary deaths and serious illnesses”. Gardner’s father, Michael Gibson, became infected and died in April after a patient who tested positive for the virus was discharged from hospital into his home.”

The Royal College of Nursing, reported in an article in October that a chief nurse signed up to Florence, an online platform which enables nurses to book temporary shifts directly with care home providers, feels the blame is being shifted away from the government and onto the agency worker. Florence lost two of its staff to the pandemic. 

While some have blamed temporary staff for spreading COVID-19 through care homes, the chief nurse told the RCN that she was witnessing scapegoating. “We need to be clear that agency nurses are the same people who work in the NHS or are permanent care home staff. They may have chosen to do some extra work or decided to do temporary shifts because it suits their lifestyle. But they have the same professional requirements and are regulated in the same way.”

She continued: “People were looking for reasons why care homes became so badly affected by the virus, with some saying additional deaths were caused by agency nurses moving between homes – but we knew this wasn’t the case. It was multi-faceted.” 

In the same RCN article, Nomusa Muhlwa, a staff nurse in an NHS hospital, felt she couldn’t continue after they began discharging older patients, some of whom had tested positive for COVID-19, back into care homes. 

“My conscience didn’t allow it,” she said. “Care homes were being forced to take back residents, regardless of whether they were testing positive for the virus. They were being sent back to be with another set of very vulnerable people. I knew what was going to happen. It would be a domino effect.” 

The RCN report said that Muhlwa was warning people about the dangers of the virus as far back as February, writing about it on social media and raising the issue of personal protective equipment (PPE) at her hospital. “At the time there were only about 20 cases of COVID-19 throughout the UK,” Nomusa recalled.

The government’s stance

The government statement on the upcoming consultation said that in its adult social care winter plan it was committed to “new regulations to enforce limitations on staff movement between care homes, and between care homes and other health and care settings, focused on care home providers.”

The policy objectives of this consultation are to consult the adult social care sector on the proposal to stop staff movement.

We need to be clear that agency nurses have the same professional requirements and are regulated in the same way

Department of Health and Social Care

The findings of a government study on the impact of coronavirus in care homes in England indicated one of the common factors in care homes with higher levels of infection among staff was the extent to which those homes employed staff who worked across multiple sites.

In its adult social care winter plan the government made clear that stopping staff movement between care settings is critical to minimise the risk of infection of COVID-19 and other viral illnesses, including flu. The winter plan also set out steps that government, local authorities and care home providers should take to limit all staff movement between settings unless absolutely necessary.

“To ensure movement between care homes and other health and social care settings is stopped in all but limited circumstances, it is the government’s intention to regulate care home providers,” said a government statement.

The Infection Control Fund (ICF), which has been extended until March 2021 with an extra £546 million of funding, is in place to support adult social care providers to reduce the rate of COVID-19 transmission within and between care settings, in particular by helping to reduce the need for staff movement between sites.

The government policy intention

“We’re proposing to make regulations that create a requirement on residential and nursing care home providers in England to restrict the movement of staff providing personal care or nursing care in their services. We also intend to amend the code of practice on the prevention and control of infections to explain the requirement. This is intended to contribute to the control of infection by preventing situations where staff are working in more than one setting.”

The requirement would apply to Care Quality Commission (CQC) registered residential and nursing care home providers in England. These providers would be required not to use staff to provide nursing or personal care who are carrying on, or who have carried on within the previous 14 days, a regulated activity in another setting and/or for another health or social care provider subject to certain exceptions.

The requirement would apply to the use of all staff including bank or agency staff, excluding registered managers, or individuals deployed to undertake tasks other than the delivery of care, such as cleaning. The requirement would not include primary or community health care staff who are not employed or engaged by the home provider (for example district and community nurses, GPs or other visiting healthcare professionals).

It is not the intention of the policy to prohibit the employment of an individual who holds a relevant second job with another provider, providing they are not attending that setting for the period the requirement is in place. Providers could continue to use agency or other temporary staff provided those individuals are not attending another health or social care setting. If staff move settings there should be a 2-week period in between.

How will it work?

Where deploying agency staff, to support this, providers could consider the use of “exclusivity contracts with agencies” or “block-book” agency workers on a temporary or minimum hours contract. However, the government said that providers would be expected to ensure temporary workers have access to a test before they begin their placement, as well as routine testing during their placement.

Examples of how the ICF funding can be spent to support measures to restrict staff movement can be found in the ICF guidance.

Workers could be out of pocket

Providers would be expected to take reasonable steps to identify those workers who hold additional jobs. Where an individual holds more than one relevant job, we propose it would be at the discretion of the individual worker which role they intend to continue. Providers would need to engage in discussions with such workers about their decision.

“We propose a limited exception to the requirement in order that care home providers can continue to ensure enough staff are available to care for service users safely. This would allow providers to use people who are also being deployed in another health or social care setting, or who have been within the previous 14 days, but only for a reasonable period of time to allow the provider to make other arrangements to enable them to comply with the requirement,” said the government.

This may apply where, for example, a provider has taken all available action but is still unable to engage enough staff to cover specific shifts or perform specific duties. Likewise, there may be unplanned absences due to a significant proportion of staff self-isolating as a result of COVID-19 requirements, or another unforeseen circumstance that prevents staff from attending work (for example a school closure).

The paperwork

For the exception to apply, the provider would need to be able to demonstrate that it has adequately planned its staffing requirements in accordance with existing CQC fundamental standards and is actively taking steps to address any resourcing needs, but is still unable to ensure sufficient staff are available to care for service users. Providers would also be expected to demonstrate that, in so far as reasonably practicable, all staff used in this situation have had a test for COVID-19 in the previous 7 days and received a negative result. The provider must be satisfied the individual has had training in infection prevention and control and have a risk assessment in place.

In these circumstances, providers can use agency or other temporary staff (for example bank or pool), provided they meet the requirements set out in the exception above. Providers should seek to engage agency staff on a block-booking or placement basis and take all reasonable steps to ensure those staff are not attending other settings.

Where a provider makes use of the exception and deploys staff who are also attending another care home setting, or who have been within the previous 14 days, the second provider (usually where the individual staff member has chosen as their primary place of work) would not be in breach of the requirement.

The requirement will not apply to those staff who have been attending another health or social care setting in the 14 days prior to the proposed regulations coming in to force.

Following consultation, to support providers to comply with the regulation and maintain safe staffing levels the government will issue more detailed guidance for providers.

On 23 November, the RCN is celebrating the vital contribution nursing support workers make in caring for the health of the UK on its first Nursing Support Workers’ Day. 

The RCN asks for those in the healthcare sector or those that just want to say thank you to the 1.3 million nursing support workers in the UK during the COVID-19 pandemic.

Follow #NursingSupportWorkersDay and hear from RCN’s Nursing Support Workers’ Committee about the important work they do.

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