Regulation 5 of the Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regulations 2021 requires care homes to ensure that an individual does not enter a care home unless they have been double-vaccinated. It comes into force on 11 November 2021. There are exceptions to this rule, including those with medical exemptions. But there is no exemption for care home workers who refuse to have the vaccination for ideological reasons or, for example, because they are concerned about its side-effects. The result is that care home workers who refuse to have the vaccination may be unable to carry on with their roles.
In R (Peters and Findlay) v Secretary of State for Health and Social Care, the High Court has this week rejected a claim brought by three claimants, including care home workers, that regulation 5 was unlawful on the grounds that: (1) it was ultra vires the enabling provision in s.20 of the Health and Social Care Act 2008; (2) the Secretary of State failed to take into account relevant considerations; (3) it breached their Article 8 ECHR rights to bodily integrity; (4) it amounted to unlawful discrimination, contrary to Articles 8 and 14 ECHR because it disproportionately impacted women and those from ethnic minorities; and, (5) it was irrational.
Following a hearing that lasted almost a day, Whipple J refused permission for the claim to proceed. She found that: (1) regulation 5 fell within the powers contained in s.20 of the Health and Social Care Act 2008; (2) many of the Claimants’ complaints related to the merits of the policy, which was made in clear knowledge of all the relevant data. Ultimately, for a high-level public health policy, the Government would be granted a broad discretion. Grounds 2 and 5 were arguments on political and social choices and did not raise issues where the Court had a legitimate role; (3) there was no breach of Article 8, particularly in light of the ECtHR case of Vavřička v Czech Republic (2021). The Government was protecting the Article 2 rights to life of those in care homes. The Government, therefore, had a wide margin in implementing any measure bearing in mind it was a political and social decision based on the evidence; (4) Article 14 ECHR added little to the Article 8 ECHR argument. Even if there was discrimination, it was justified in the context of the pandemic and the urgent need to protect care home residents from COVID-19.
Yaaser Vanderman acted for the Secretary of State for Health and Social Care.