The government looks set to abandon its long standing policy of only offering the human papillomavirus infection (“HPV”) vaccination to girls after coming under pressure from the Throat Cancer Foundation (“TCF”), which had threatened the Secretary of State with a Judicial Review. TCF argued that providing immunisation services to girls but refusing to immunise boys, when both could benefit from the vaccine, was a breach of the Secretary of State’s duties under the Equality Act 2010.
The Throat Cancer Foundation, supported by Leigh Day, has consistently maintained that the present policy of offering the HPV vaccination to girls only constitutes a breach of the Equality Act 2010; specifically, that the policy constitutes direct discrimination on the grounds of sex and thus that the Secretary of State and/or the JCVI are/is in breach of sections 13 and 29 of the 2010 Act.
Additionally, the Foundation argued that the JCVI was in breach of its public sector equality duty by refusing to consider the equality implications of continuing the present policy when formulating its advice to the Secretary of State. The JCVI has sought to argue that it is not exercising a public function and that it is not obliged to consider equality issues. This is despite the fact that it formulates advice and recommendations about national public health matters and the allocation of scarce resources.
However, it now looks as if the government will be spared having to defend its discriminatory policy in Court because the Joint Committee on Vaccination and Immunisation (“JCVI”) has advised the HPV programme should be extended to adolescent boys.
At present, only adolescent girls are offered the vaccination as part of a universal programme for girls aged 12-13 years in schools.
The JCVI is an expert committee that advises the Secretary of State for Health and Social Care on vaccination and immunisation matters. It was created by the National Health Service (Standing Advisory Committees) Order 1981. The JCVI has power to issue advice and, where tasked by the Secretary of State, to make near binding recommendations on national vaccination programmes. Where the JCVI “recommends” a programme (where it has been tasked), the Secretary of State must make arrangements to ensure that any such recommendation is implemented, so far as is reasonably practicable.
In 2008 the JCVI recommended a universal programme of HPV vaccination in girls aged 12-13 years. At this point in time the programme was aimed at reducing HPV-associated cervical cancer. The recommendation for single-sex immunisation was made despite both men and women have the capacity to carry HPV to protect from other HPV-related diseases, including genital wards, anal, penile, head and throat cancer.
The JCVI justified its decision by arguing that high coverage in girls would produce an effect known as “herd immunity” which would benefit boys and girls. Until its latest statement, the JCVI has continued to justify a girls-only programme on the basis of herd immunity.
Herd immunity is a form of immunity that occurs when the vaccination of a significant portion of a population (or herd) provides a measure of protection for individuals who have not developed immunity. It arises when a high percentage of the population is protected through vaccination against a virus or bacteria, making it difficult for a disease to spread because there are so few susceptible people left to infect. Any protection that boys obtain from the programme, therefore, is because the HPV virus is not spread to them from girls who are vaccinated. They obtain no direct protection. This is particularly problematic for men who have sex with men (“MSM”).
Since 1 April 2018, there has been a national HPV vaccination programme for MSM. MSM up to and including 45 years of age are opportunistically offered the vaccine through Specialist Sexual Health Services and/or HIV clinics. While this is a welcome development, it is an imperfect means of providing protection against HPV-related diseases to men.
While the JCVI has accepted there would be additional benefit to boys from a gender-neutral programme, until its latest statement it has considered that this additional benefit would not be sufficient to justify the cost of extending the programme to boys.
It is interesting to note, therefore, that in its recent statement the JCVI has finally acknowledged that it has to give some consideration to equality issues. It does so while maintaining that as an expert scientific advisory committee it is not “tasked with providing advice on equality issues” and that any equality analysis falls to be conducted by the Secretary of State. It seems highly unlikely that this is a legally robust approach.
This is a huge victory for those who have been campaigning for many years to bring about such a change. The final, and crucial, step is for the Secretary of State to accept the JCVI’s advice and implement a gender-neutral programme. However it means that the question whether a single-sex health service, such as the HPV vaccination, is a breach of the 2010 Act will have to wait for another day.
This is a fascinating legal question that may well arise in other contexts, such as the provision of breast cancer screening to women aged 50-70 years but not to men, to name but one example.
Hannah Gibbs acted with David Lock QC for the Throat Cancer Foundation, instructed by Rosa Curling and Erin Alcock of Leigh Day. The Throat Cancer Foundation has campaigned for a number of years for gender-neutral HPV vaccination and has argued that a girls-only programme constitutes a breach of the Equality Act 2010.
See the JCVI’s statement here.