Emma Carr, Case Manager at Dental Protection, and Lesley Harrison, Dentolegal Consultant at Dental Protection, look at some recent queries from practice owners over what to do when members of their staff refuse the COVID-19 vaccination
Increasing numbers of frontline healthcare workers have been vaccinated against COVID-19 as the global vaccination programme widens across the world. But, as with all types of vaccination, there will always be individuals who refuse to take part, due to their own personal beliefs.
As a practice owner, if a member of your staff – whether a dentist or a nurse – refuses the COVID-19 vaccine, what are your obligations towards patients, other staff who have been vaccinated, and other people you may come into contact with outside the practice? Is there anything you need to specifically do in response? And does this make you more liable to claims?
Advice from Dental Protection
While COVID-19 vaccination is highly recommended, ultimately it is not mandatory and practice staff cannot be forced to have it. Practice principals should have a discussion with these staff members to try to understand why they are reluctant to have the vaccine. Practice owners may wish to encourage staff to have a vaccination through discussing their increased risk of repeated exposure to the virus as healthcare workers, the benefits of having the vaccination to themselves, their colleagues, patients and family, and the wider benefits of reducing the transmission of COVID-19.
Before COVID-19, the transmission of blood-borne viruses during clinical treatment was the main cross-infection risk considered in dentistry. Although claims were rare, associated issues usually related to alleged failings arising from the clinical aspects of care surrounding the provision of dental treatment in the dental surgery. In the context of COVID-19, airborne transmission is a risk in all settings. Airborne viruses are the most contagious and it is this aspect that is particularly concerning because it potentially increases the risk of transmission in dental practices.
Anyone who has attended the practice and believes they have developed COVID-19 as a result, could bring a claim irrespective of whether any face-to-face clinical treatment had been provided. It is possible claims 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.
What if a claim does arise?
Any claim that relates to the failure to maintain and operate safe premises, and which alleges that the health and safety of employees was compromised, is essentially a business matter. Should any such claim arise, this should be directed to the practice’s public liability and employer’s liability insurers.
Where claims and allegations against a dentist or dental care professional relate directly to the provision of the patient’s clinical treatment, members can request assistance from Dental Protection in the usual way. From a risk management perspective, a claim arising from clinical treatment is more defensible where the clinician can provide evidence of compliance with authoritative, evidence-based and current infection prevention and control (IPC) guidelines. It would also be helpful to be able to demonstrate that regular audits are undertaken to ensure compliance.
The same principles apply in relation to the prevention of transmission of COVID-19. Practices must have written standard operating procedures (SOPs) and protocols in place and these should reflect, and be aligned with, current guidance including reference to social distancing requirements and the recommended and relevant IPC measures. This information would likely contribute significantly to preparing a robust defence against any allegations.
Irrespective of whether or not the entire dental team have had the vaccine, it is of paramount importance that SOPs and IPC measures are followed, including the use of appropriate personal protective equipment (PPE) within the practice. The current guidance suggests that the COVID-19 vaccines in use will offer the individual who takes it some additional protection and will reduce your chance of becoming seriously ill. It will not necessarily reduce the risk of you passing the virus to others. Therefore, until more is known, members of the dental team should continue to follow the guidance to help reduce transmission and protect those around them.
As extra protection, practice owners may wish to carry out a risk assessment with regards to any members of staff who are unwilling or unable to have a COVID-19 vaccination. It may also be worthwhile to consider if there would be an alternative, non-patient facing, role within the practice the relevant staff member could carry out.
As to whether you, as the practice principal, can make it a contractual obligation to take the COVID-19 vaccine, you may wish to consider contacting an employment law specialist to obtain specific advice before asking a member of staff to have the vaccination. In any event, a vaccine cannot be forced by law and, as an employer, you should carefully consider the implications that would arise from any attempt to do so.