Consultation outcome

Draft annex to code of practice on the prevention and control of infections

Updated 29 June 2021

Applies to England

Criteria 11

Registered care home providers of nursing or residential care must not deploy people to provide nursing care or personal care if those people are also being deployed, or have been deployed within the previous 14 days, to provide a regulated activity in another health or social care setting. There is an exception where this would result in unsafe staffing levels, subject to conditions set out in regulations.

Time limit

This requirement is imposed through time-limited modifications to regulation 18 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 ("2014 Regulations"). The requirement will end on the earlier of the expiry of part 1 of Schedule 12 to the Coronavirus Act 2020 (powers and duties of local authorities in England), or the date on which the 2014 Regulations cease to have effect. Due to its time-limited nature, it is being issued as an annex to the Health and Social Care Act 2008: code of practice on the prevention and control of infections.

How it works

In order to reduce the risk of infections and outbreaks in care homes, providers should not deploy people to provide nursing care or personal care if they are also being deployed to carry on a regulated activity in another health and social care setting. A health and social care setting is any setting required to register with the Care Quality Commission (CQC) under the Health and Social Care Act 2008. Regulated activities are listed in Schedule 1 to the 2014 Regulations. Those providing remote medical assistance under paragraph 9(2) of Schedule 1 to the 2014 Regulations are not in scope of these restrictions.

The requirement includes any individual a provider may deploy to deliver care in its care home, including permanent and temporary employees, agency workers and bank or pool workers. This does not include individuals deployed to undertake tasks other than delivery of care in its care home, such as cleaning. This also does not include primary or community health care staff who are not employed or engaged by the care home provider (for example a district nurse employed by the NHS to carry on nursing care).

Where a provider continues to use agency or other temporary staff, it should consider the use of exclusivity contracts with agencies and block booking agency workers. Providers should ensure temporary workers have access to a test before they begin their placement and routine testing during their placement.

The requirement does not prohibit the employment of an individual who holds a second job delivering regulated activities with another health or social care provider, or of individuals who would usually work across more than one setting for the same provider, providing they are not attending those settings for the period the restrictions apply. If an individual employee wants to move from working in one setting to another, there should be a 14-day period in between those deployments during which the individual does not provide personal or nursing care.

The requirement applies to the use of any person who is, or has been, providing a regulated activity in another health or social care setting within a 14-day period preceding the day on which the nursing or personal care is provided. Should a provider wish to use a worker who usually attends two settings, it would be required to ensure there was a 14-day interval between the individual attending one setting and the other, apart from in those circumstances where exceptions apply.

It will be for individuals to declare to providers whether they hold a second job that they would usually attend. Providers will be expected to demonstrate they have taken reasonable steps to gather this information from the individuals they use to provide care. They can do this by asking individuals to tell them about any relevant jobs they hold and make a record of their response. Where a provider has taken reasonable steps and an individual chooses not to tell it about a second job, this will not be considered a breach of the code of practice/regulation.

Where individuals hold more than one relevant job it is at the discretion of the individual worker which role they intend to continue. Providers should engage in discussions with such workers about their decision.

In order that care home providers can continue to ensure enough staff are available to care for service users safely, there are some limited exceptions to the requirement. Where complying with the new requirement would mean that a provider did not have sufficient staff to provide a safe service, as required by regulation 18(1), a provider can use people who are also being deployed (or have within the previous 14 days been deployed) to carry on a regulated activity in another health or social care setting. This only applies for the period reasonably necessary to allow that provider to make arrangements to enable it to find enough staff who are not working elsewhere to enable it to comply with the new requirement.

In addition, for this exception to apply, the provider will need to be able to demonstrate that:

• it has adequately planned its staffing requirements in accordance with CQC Fundamental Standards

• is actively taking steps to address any resourcing needs

• is still unable to ensure sufficient staff are available to care for service users safely

• so far as reasonably practical, all staff used in this situation have had a test for COVID-19 within the previous 7 days and have received a negative result from it

These circumstances may arise for example when, having taken all reasonable steps, a provider is unable to engage enough staff to cover specific shifts or perform specific duties. It may also arise when there are unplanned absences due to, for example, 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 school closure).

In those circumstances where a provider intends to use people to provide care who are also attending a job in another health or social care setting it must have a risk assessment in place, in accordance with criterion 1 of the code of practice. The person being deployed should be asked to confirm they have had a negative test for COVID-19 in the last 7 days, and the provider must be satisfied the individual has had training in infection prevention and control.

All staff deployed by the provider on this basis should be tested as part of the provider's routine weekly testing programme. Where an individual is working in a care home, they should always have had a test within the last 7 days. For a new deployment this means that the provider should provide a test within 7 days of the date of the test the individual reported as their last test. This may mean that a provider needs to ensure they provide a test less than 7 days into their deployment.

Where the exceptions apply and a provider uses agency or other temporary staff (for example bank or pool) as a solution, the provider should seek to engage them on a block-booking or placement basis and take all reasonable steps to ensure those staff are not attending other settings.

Providers will only be allowed to deploy people using the above exceptions for as long as is needed for them to resolve any staffing issues. They will be expected to demonstrate to the CQC the steps they have taken to meet the requirements and why they have still been unable to do so, and the steps they are actively taking, or have taken, to ensure compliance.

Where one provider makes use of this exception, the second provider – usually where the individual staff member has chosen as their primary place of work for the duration of the restrictions – will not be in breach of the regulations.