Mandatory vaccination for care home workers not unlawful nor in breach of ECHR
26 November 2021
This was a renewed application by the claimants for permission to proceed with a judicial review challenge to the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which requires a registered person who runs a regulated activity in a care home to ensure that any person entering the premises has been vaccinated, unless for clinical reasons that person is exempt.
These new regulations regarding the mandatory vaccination of care workers came into effect on 11 November 2021. The claimants, both employed by care homes, challenged the legality of these regulations (passed under the Health and Social Care Act 2008). Whilst the claimants accepted that the 2021 Regulations fell within the scope of the 2008 Act, they argued that s.45E of the Public Health (Control of Disease) Act 1984 was engaged and, when the provisions are read together, s.45E precludes Regulation 5(3)(b). Section 45E provides that Regulations made under s. 45B or s. 45C may not include provision requiring a person to undergo medical treatment.
They based their claim on the argument that the effect of the 2021 Regulations was to mandate vaccination and that mandate was precluded by Section 45E of the Public Health Act.
Whipple J did not agree with that submission, or even consider it arguable. Section 45E says that no person can be compelled to undergo medical treatment, but that is not, on a proper understanding, the effect of the 2021 Regulations, which do not mandate vaccination.
The way they work is that the individual retains the autonomy to decide whether to be vaccinated or not; the 2021 Regulations impose a consequence, depending on the choice a person makes, and preclude someone who has chosen not to be vaccinated from taking up work in a care home unless they come within an exempted category, which neither of these claimants does.
She therefore concluded that this was not a situation where Section 45E was “even arguably engaged”.
The judge also rejected the arguments that any gap between the prohibition on mandatory treatment under Section 45E and the 2021 regulation (prohibiting unvaccinated workers in care homes) could be “bridged” by Article 8 of the Convention. This proposition was, in her view, also unarguable.
She then moved to the second ground of their claim. Both claimants argued that the defendant had made insufficient enquiry and had ignored relevant considerations – in other words, a challenge of irrationality. The core of this argument was that the government had been wrong to introduce the 2021 Regulations, given the state of science about Covid infections, and given the available alternatives for protecting people in care homes from COVID-19.
The alternatives put before the court, were, inter alia, allowing unvaccinated care workers to continue in employment if 80% of other care workers had been vaccinated; or that the government should have considered natural immunity as an alternative to vaccinated immunity and that those who had had Covid should have been exempted from the requirement of acccinations.
Looking at the purpose of the 2021 Regulations, the judge emphasised that the aim of this instrument was “to reduce the spread of COVID-19 in care homes, in order to protect care home residents who are vulnerable to COVID-19.
legislative choice to require those who work in care homes to be vaccinated was made on the basis of data about COVID-19, as it affects residents of care homes, bearing in mind their vulnerability, and it was based on the scientific advice provided by SAGE. I do not accept that it is arguable that the Government erred in law, by failing to adopt a different strategy or gather different evidence or pay more regard to some of the competing voices in this debate. There is, undoubtedly, a discretion afforded to Government – a broad discretion – to determine policy decisions of this nature. These are high-level public health policies.
As to natural immunity, there was inadequate evidence that those who have had COVID-19 both in terms of the duration and extent of any immunity as compared to those who have received vaccinations.
Whipple J concluded that both the main grounds of the claimants’ argument were about political and social choices made by Government and did not raise issues where the court has a legitimate role.
She therefore refused permission for those grounds.
As to their argument that the Regulation gave rise to a breach of Article 8, this was answered in a large part by the case of Vavřička v. Czech Republic:
if children can be barred from school because they are not vaccinated, as was the circumstance of that case, it must follow, by analogy, that there is no breach of Article 8 to legislate so that workers, who are not vaccinated, can be prevented from working in care homes.
In any event the government would have a wide margin of discretion in implementing any measure in order to protect care home residents, again bearing in mind the essentially political and social decision at issue, which is based on complex scientific and social evidence…
Any discrimination [under Article 14 ECHR] which could be shown to exist, and that in and of itself is a doubtful proposition, would surely be justified in the context of a pandemic and in the context of an urgent need to protect care home residents from COVID-19. Again, the breadth of the discretion afforded to Government in these circumstances is confirmed in many cases decided by the domestic and Strasbourg courts.