In recent weeks the Secretary of State for Health and Social Care, Sajid Javid, has been asked to explain the legal standing of the new regulations requiring care home workers in England to be fully vaccinated by 11 November 2021.
The new regulations are being challenged on the basis that they contravene the Public Health (Control of Disease) Act 1984 which prohibits a requirement for people to undergo medical treatment, including vaccinations.
A formal judicial review proceeding was therefore proposed. Although the judicial review proceedings would be against the Government, not organisations, any official legal challenge to the new regulations will cause more uncertainty for organisations.
Organisations who put their preparations on hold risk running out of time to comply with the regulations, not being able to plan staff resourcing for November and may face action from the CQC for non-compliance.
Judicial review confirmed
An official legal challenge against the Government has now been initiated. It challenges the lawfulness of the 2021 Regulations which mandate the COVID-19 vaccine for all care home staff. The regulations are challenged, specifically, on six grounds.
The key challenges which are being argued are that the new laws:
- go against existing ones
- interfere with the right to bodily autonomy
- indirectly discriminate on the grounds of race and sex
- are “irrational” since they do not reduce transmission rates
- breach the duty of sufficient inquiry since they didn’t consider the impact it would have on care homes, as well as the efficacy of alternatives (e.g. regular testing, PPE etc.); and
- breaches the duty to consult.
Judicial reviews can take time, with no guarantee that the Regulations will be overturned. Organisations should keep updated on proceedings and continue to prepare for the 11 November 2021 cut-off. Care home employers should start consulting with their staff regarding their vaccination status and put measures in place to comply with the new regulations to avoid being on the back foot if the regulations remain current law.
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