It is being reported that a paper has been leaked showing that Boris Johnson and Matt Hancock have agreed to put in place legislation to make vaccination mandatory for social care staff. It is also reported that the paper makes clear that a similar legal requirement is being considered for some frontline healthcare workers, including those on wards, but a decision on that has yet to be taken.
I consider this proposal, if implemented, could be subject to subject to successful legal challenge under the Human Rights Act. The decision to focus on social care staff ahead of healthcare staff itself does not appear to be supported by any evidence.
If vaccination is to become the key risk management tool in a social care setting the same must apply in a healthcare setting. Is there some scientific evidence base behind this? Is it further evidence that, despite there having been no public enquiry into the handling of the first wave of the pandemic, the Government lay blame at social care staff and their employer's doors?
Article 8 of the European Convention on Human Rights provides a right to respect for private, family life, home and correspondence. The right to respect for private life includes the right to decide whether to undergo medical treatment. This will include a decision as to whether to be vaccinated.
Article 8 is a qualified right. This means an infringement can be justified under Article 8(2). This provides:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Necessity would be a high bar but Human Rights case law has recognised a case could be made out in a pandemic. What would the Government's evidence base be to show that Covid-19 risks cannot be managed successfully through current risk management measures used in care settings? This policy would follow the peak of infections earlier this year, so why is it necessary now if it wasn't necessary in January 2021? What about people who live in care homes, does it mean they also have to be subject to mandatory vaccination?
The Government would need to overturn other legislation to make this policy possible. The Public Health (Control of Disease) Act 1984 currently specifically prevents Government actions taken for the purpose of preventing, protecting against, controlling or providing a public health response to the incidence or spread of infection or contamination in England and Wales, including compulsory vaccination.
The policy is also fraught with difficulty as to how do you deal with exceptions. If they argue that you can't work in a care setting without it, what about pregnant employees for example, does that mean they can't work in a care setting? If there is an exception for them, what is the justification for that and surely it undermines the "necessity" argument which is critical to avoid the policy being a breach of the Human Rights Act?
Our view remains that social care providers should be doing all they can to encourage their staff to be vaccinated. Many are reporting high take-up levels already. In addition, for new employees, a no jab-no job policy will already be lawful subject to making exceptions where the policy may be discriminatory under the Equality Act 2010.
Our view is that Government required mandatory vaccination of the social care workforce should only be supported if there is a compelling scientific evidence base that shows that this is a critical and necessary step for the protection of those receiving care and support in social care settings. Addressing some of the questions posed in this blog so providers have confidence they are not going to be exposed to successful legal challenges is also key.
Without that evidence, the policy may be subject to successful challenge under the Human Rights Act which would only create more issues for social care providers. Care providers do not want to find themselves facing large numbers of unfair dismissal claims - relying on Human Rights Act arguments arising out of having to implement legislation - if there is no compelling evidence base behind mandatory vaccination.
“The prime minister and the secretary of state [Hancock] have discussed on several occasions the progress that is being made to immunise social care workers against Covid-19 and have agreed – in order to reach a position of much greater safety for care recipients – to put in place legislation to require vaccinations among the workforce.”