Legal update
Judicial review of mandatory vaccine law
Tom Lumsden, a partner at law firm CooperBurnett LLP, updates his previous article about the new regulations making it compulsory for care home workers to be fully vaccinated
In my last article in the September issue of The Care Home Environment, I summarised the provisions of the new regulations making it compulsory for care home workers to have a full course of vaccinations. It will come as no surprise that those regulations are now being challenged in the courts. In mid-September, the Telegraph
reported Julie Peters, a care home programme director from Poole in Dorset, and Nicola Findley, a full-time care home support worker from Wolverhampton, were seeking permission for a judicial review. The legal action bankrolled by freedom
of choice campaigner Simon Dolan is being brought under six grounds. In brief, these include: the regulations are incompatible with laws prohibiting the enforcement of mandatory vaccines, they interfere with the right to bodily integrity, and they will disproportionately impact women and ethnic minorities. In addition, the claimants say
the government failed to consider alternatives to mandatory vaccination,
and that the rules are irrational and will lead to shortages in both front-line and non-front-line care workers. The regulations will come into force
on 11 November 2021 and will apply to England only. The regulations are the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021, which state a care home provider must ensure nobody enters a care home unless they fall into one of the identified exceptions. The exceptions include care home
residents, friends and relatives of care home residents, emergency health providers and children aged under 18. Those who are permitted to enter will include anyone who has completed a full course of an approved Covid vaccine or, for clinical reasons, who cannot be vaccinated. The challenge filed on 9 September
was timely because 16 September was the last possible day for staff working in Care Quality Commission-registered care homes in England to have their first vaccine, if they were going to be able to meet the requirement to be fully vaccinated by 11 November.
Grounds for legal challenge The legal grounds on which the various challenges are being brought are interesting. In summary, judicial review
November 2021 •
www.thecarehomeenvironment.com
is a legal process by which a party with a legitimate interest can challenge a decision made by the government or a public body, on the basis that the decision is unlawful because it was made in an unreasonable manner that no reasonable body would have made. The various grounds for legal action against the mandatory vaccination of care home staff and ancillary workers include: l That the new regulations introducing mandatory vaccination for care home workers are unlawful because they are not consistent with other legislation, including legislation preventing the enforcement of mandatory vaccines.
l That they interfere in a disproportionate manner with the right to autonomy of front-line and non-front line care workers contrary to Article 8 of the European Convention for the Protection of Fundamental Rights and Freedoms.
l That they are a disproportionate interference with Article 8 Rights in conjunction with Article 14 by reason of indirect discrimination on the grounds of race and/or sex for front-line and non-front-line care workers.
l That the vaccine requirement is irrational in the absence of pre- authorisation testing for their ability to reduce transmission and
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