Update on Judicial Review of mandatory COVID-19 vaccinations in CQC regulated care homes

The Courts have rejected an initial judicial review application that challenged the Government’s vaccine mandate for workers in CQC regulated care homes. Despite the rejection of the initial application, the Claimants have renewed their application.

Further to our recent article on mandatory COVID-19 vaccinations in CQC regulated care homes, there has been a development in the court proceedings challenging the Government’s vaccine mandate. The judge reviewing the written arguments, Honourable Mrs Justice Eady DBE, refused the application for judicial review without considering it necessary to hear oral argument.

One of the reasons for rejecting the initial judicial review application stated by Mrs Justice Eady was that the claims:

"…seek to persuade the Court to determine a matter of political balance and judgement, which must be for those involved in governmental decision-making and not for judicial resolution."

In addition, Mrs Justice Eady stated that in respect of human rights and bodily autonomy:

"Given…the other obligations of the State (in particular under Article 2 ECHR [right to life]) and the margin of appreciation afforded to the Defendant, I am not persuaded that there is an arguable basis for contending that any interference with the Claimants’ Convention rights would not be justified as necessary and proportionate in these circumstances"

It is safe to presume that the "circumstances" in which the Courts saw the vaccine mandate as being necessary and proportionate is the ongoing Covid-19 pandemic and the fact that mass vaccination is a measure that has been implemented to lessen the impact of the pandemic.

The judgment is important because it is the first indication that the Courts will side with the Government on mandatory vaccinations for care home workers. The judgment makes clear that the Courts view the policy mandating care home workers getting the vaccine as a necessary and proportionate infringement of their rights in light of the pandemic. The judgment is also notable for the clear statement from Mrs Justice Eady that the matter is one of “political balance and judgement” which should be reserved for those in decision-making roles in government. It seems likely that the Courts will be unwilling to challenge the Government on this issue.

Notwithstanding the swift rejection of their initial judicial review application at the first hurdle and strong judgment opposing their position, the Claimants have renewed their application and, as a result, an oral hearing must now be granted by the Courts. The oral hearing has been scheduled for 2 November 2021. This leaves a very short time for CQC Regulated Care Homes to react to any judgment that arises following the oral hearing.

For further reading on this issue and proposed next steps for care home owners or managers, please read our previous article or contact Ed Henderson or Michael Anderson in our Employment team.