Can dentists take action against the mandatory vaccine requirement?

Can dentists take action against the mandatory COVID-19 vaccine requirement?FTA Law reveal all on the legal issues intertwined with the mandatory vaccine requirement for healthcare workers.

A recent government announcement confirmed that all frontline NHS staff will need to be fully vaccinated against COVID-19 by 1 April 2022. The policy of mandatory vaccinations applies to all practitioners performing a CQC-regulated activity. This covers the dental sector and applies regardless of whether the practice is private, NHS or a mixture of both.

The issue of mandatory vaccinations is a controversial one. The dental sector follows on from the care sector in requiring vaccinations as a condition of employment/engagement after a certain date. The focus of the government is on safety first, at the expense of the individual rights and liberties of the practitioners involved.

The culture of fear in society generally has led to a dictatorial policy of mandatory vaccinations.

It is already a condition of GDC registration that practitioners have hepatitis B and tuberculosis inoculations, in accordance with the Department of Health guidelines. However, many practitioners consider the COVID-19 vaccine to be a step too far. This is a very worrying time for them as they try to balance their concerns regarding the vaccine against the very real risk of losing their job in a few months’ time.

Around the world

The UK’s vaccine mandate is not unique and similar policies are being introduced around the world. In New Zealand, similar rules are being applied to teachers. In Italy, all workers must show proof of vaccination, immunity or a negative test to go to work. Otherwise, their pay can be stopped after just five days.

Greece has made vaccines mandatory for those over 60 and Austria is making vaccines mandatory generally from February onwards. Germany is considering a similar policy.

Human rights

Mandatory vaccinations are a highly contentious issue and are largely incompatible with existing legal principles, particularly concerning discrimination. Whilst the policy is being implemented with the best of intentions to protect public health, this jars against the practitioner’s right to a private life under Article 8 of the European Convention of Human Rights. The right to bodily integrity is also enshrined in the Universal Declaration of Human Rights.

Given the threat to the NHS and the eye-watering economic costs of lockdowns, insisting that everyone who can be vaccinated should be may not seem unreasonable. However, international and domestic law does provide for the right to bodily autonomy.

The issue is whether the suspension of health professionals who refuse the vaccine is a proportionate response on the part of the government. Whilst they may have a wide margin of discretion, it is arguable that the lawfulness of the policy is open to challenge.

The difference in the care sector is that the majority of their service users are in high-risk groups. These comprise of mainly elderly and vulnerable people. The same cannot be said of the dental industry.

Judicial review

We are getting lots of enquiries regarding the mandatory vaccinations and many dental practitioners are raising concerns about this. The relevant legal action available is known as Judicial Review (‘JR’). It is a process which enables the court to review a government decision to ensure they have acted lawfully and fairly.

The Court may allow a JR where a decision has been made:

  • (i) Illegally – misdirected in law or wrongly exercised power
  • (ii) Irrationally – so unreasonable that no reasonable authority could ever have come to it, took into account irrelevant matters or failed to consider relevant matters
  • (iii) Procedurally unfairly – not following statutory procedures or the principles of natural justice in the decision-making process.

A flawed consultation process is a common procedural ground for JR.

Timescales

The timescales for JR are very short so time is of the essence. The policy was announced on 9 November 2021, so the final deadline is three months from that date (ie 9 February 2022). However any action should be taken promptly.

Filing a JR within three months may not necessarily be considered prompt enough. The court has discretion to refuse permission for the claim to proceed. In the absence of a successful Judicial Review, the policy stands. Unvaccinated practitioners will have their contracts terminated with effect from 1 April 2022.

Procedure

We would initially advise on the merits of the JR and the way forward. The usual procedure is a detailed Letter of Claim followed by the issuing of a Claim Form in the High Court of Justice Administrative Court, supported by a Statement of Facts and Grounds. In order to proceed, the court must be satisfied that there is an arguable case for JR and provide permission. Only if permission is granted can the matter proceed to a substantive hearing.

Once permission is given, the defendant and any other interested parties have the opportunity to file a detailed response and evidence. Witness evidence, oral evidence and expert evidence are extremely rare in JR proceedings. This is because process is more streamlined than regular litigation.

Usually, a JR will seek a quashing order to set aside the decision and a mandatory order directing the government to take the decision again in accordance with the court’s judgment. This is often coupled with an interim injunction to prevent the decision being acted on pending the court’s determination.

Should the initial JR be unsuccessful, there may be an option to appeal to the Court of Appeal. Or, given that is a matter of national importance the result of which is significant, could leapfrog to the Supreme Court.

Costs

The benefit of JR proceedings is the relatively low legal costs as compared to other court proceedings, as a result of the expedited process and light volume of evidence relied on. The court has a wide discretion as to costs awards. It can be possible to apply for a costs capping order where appropriate.

Recent successes

There have already been several successful JRs relating to COVID-19. This includes the removal of the 10pm curfew for hospitality and the three tier system for restrictions. Permission has also recently been given to challenge the refusal to provide cultural recovery funding by the Secretary of State for Digital, Culture, Media and Sport.

Next steps

We are currently in the process of establishing whether it would be possible to set up some form of group action involving interested parties in order to take action but keep the costs limited.

As a firm we specialise in providing legal services for the dental industry. Lindsay Dixon is an associate solicitor in our dispute resolution team. She has more than 20 years’ experience of civil litigation to include judicial review involving the government.


If you are interested in becoming involved in the group action, please email [email protected] by 10 December 2021.

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