Vaccination and public/private coercion
10 February 2021
In an earlier post I discussed the problem of “vaccine hesitancy” and written evidence to Parliament to Parliament outlining ways in which a vaccination against Covid-19 without consent could be put on a par with capacity under the Mental Capacity Act 2005 and with Section 3 of the Mental Health Act 1983.
Since the announcement of successful clinical trials for the vaccination was made in mid-December, the prospect of population-wide vaccinations has become a reality, and, whilst there are still supply problems, there is no doubt that the issue of medical intervention without consent being made mandatory either through private channels has begun to exercise legal minds across the country. Saga cruise line and the airline Qantas for example have indicated their intention to refuse non vaccinated passengers. Such private prohibitions may have almost as broad an effect as the restrictions on civil liberties passed under the Coronavirus Act since lockdown was declared on March 23 2020 (more specifically, the Health Protection (Coronavirus, Restrictions) (All Tiers) (England) Regulations 2020).
I write this solely to draw attention to the cogent summary of these questions published by Boyes Turner LLP on the 5th February via Lexology: A Shot in the Arm – Can Leisure and Hospitality require a vaccine to access their Services? They ask, whatever the government does, are there legal risks in private vaccination enforcement measures? Their points are, in short:
Customers for services
- the Occupier’s Liability Acts of 1957 and 1984 impose duties on business owners to take reasonable steps to ensure that any visitor will be reasonably safe in using their premises – this would of course include the duty to ensure that customers do not face an increased risk of contracting the C-19 virus
- on the other hand, a business requiring a vaccine would be likely to be liable for indirect discrimination on the basis of age, “as most younger people simply do not have access to the vaccine yet”.
- and then there are people, for example pregnant women, who cannot take the vaccine for health reasons.
- a more unlikely scenario, but one still worth considering, is allowing people to avoid the vaccination on religious grounds. “A person with a specific belief against this vaccine or any vaccines may be protected under the Equality Act if they show their belief meets the standard of protected philosophical belief.”
- employers may be tempted not to appoint a non-vaccinated candidate, or even subject existing employees to disciplinary action for failing to take the vaccine
- Article 8 of the European Convention of Human Rights may form the basis for a claim that enforced vaccinations are a breach of the right to autonomy and bodily integrity
- GDPR defines as “special category data” any details about the personal medical health of an individual. There may be public health justifications that employers could advance for storing this information, but “this will need to be reflected in privacy policies once a decision is made, to proceed in this way.”
As the authors of this report observe, at the time of writing, the UK does not appear to be going down the route of requiring vaccines by law. More importantly, the report points out that
It is arguable that this [mandatory vaccination] is forbidden under section 45E Public Health (Control of Disease) Act 1984, which forbids regulations requiring a person to undergo medical treatment, which includes vaccination. [my emphasis].
And, finally, on a practical note, the authors of the report that one “can already anticipate” even more pressure on the NHS, in the form of
GPs being overwhelmed by requests for letters confirming their patients have received vaccinations.