Dr Rachel Birch, Medico-legal Consultant and Ms Ceylan Simsek, Case Management Assistant at Medical Protection Society (MPS), offer some guidance.
More than 400,000 doses of the Covid-19 vaccination have been given in Ireland, at the time of writing. But, as with all types of vaccination, there will always be individuals who are hesitant or refuse the vaccine for a variety of reasons including their personal beliefs.
If a member of your staff refuses the Covid-19 vaccine, what are your obligations towards patients or other staff who have not been vaccinated, and other people the staff member who refuses the vaccine may come into contact with? Is there anything you need to specifically do in response? And does this make you more vulnerable to medicolegal complaints?
While the Covid-19 vaccination is highly recommended, ultimately it is not currently mandatory and healthcare staff cannot be forced to have it. Managers should have a discussion with these staff members to understand why they are reluctant to have the vaccine. Those in supervisory roles may also wish to encourage staff to have the vaccine by informing them of the benefits to themselves, their loved ones, colleagues and patients. As healthcare workers have increased risk of repeated exposure to the virus, inoculation may help to reduce the transmission of Covid-19 to the people around them.
The Medical Council, in its Guide to Professional Conduct and Ethics for Registered Medical Practitioners, states that doctors “should be vaccinated against common communicable diseases”. Although there are unlikely to be contractual obligations, there is the potential concern for the health and safety of patients with life threatening diseases. For this reason, any medical staff who refuse the vaccine should have appropriate reasons for refusal.
It is prohibited to discriminate against people on nine grounds under the Equal Status Acts 2000-2008. If the reluctance to have the vaccine is related to a particular health concern, forcing the employee to receive the vaccine could be seen as unlawful discrimination. Alternatively, if the refusal is due to dietary commitments or religious beliefs (for example, some vaccines contain meat derivatives or porcine products), the employee’s belief or condition should be respected under employment laws whilst taking steps to ensure patient safety.
This could include a risk assessment involving the staff member who is unwilling or unable to have a Covid-19 vaccination. It may also be worthwhile considering if there would be an alternative, non-patient facing role within the practice or hospital which the relevant staff member could carry out, or whether they could work remotely. This would help to demonstrate that the appropriate steps have been taken to reduce risks and prioritise patient safety.
Anyone who has attended the practice or hospital and believes that they have developed Covid-19 as a result of acquiring it at the premises, could make a complaint. It is possible that complaints may also arise from employees who allege that they have contracted Covid-19 during their employment. However, it would be quite difficult to establish that a patient or member of staff became infected from a non-vaccinated member of staff. Nevertheless, this may not stop complaints.
What if a complaint does arise?
If a complaint does arise due to the failure to maintain and operate safe premises, and which alleges that the health and safety ofemployees was compromised, it is important to respond promptly, openly and honestly. The Medical Council expects doctors to promote and support a culture of open disclosure, and they advise that, when discussing adverse events, doctors should:
It is vital to maintain a professional, empathetic manner and deal with the complaint in an honest manner. It may be helpful to discuss the prevention controls in place, which are used to maintain and operate safety on the premises.
Where allegations against a healthcare professional relate directly to the provision of the patient’s clinical treatment, they should contact their medical defence organisation.
Key factors to consider when responding to a complaint include:
If you require further advice, please contact Medical Protection or your medical defence organisation.
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