By Natalie Marrison, Partner, Ramsdens Solicitors (www.ramsdens.co.uk)
The introduction of mandatory vaccinations would potentially infringe Articles 5, 8 and 9 of the Human Rights Act 1998 (HRA). The extent to which compulsory vaccines would infringe these rights continues to be a complex issue, as it is difficult to balance individual rights and public safety. The introduction may also cause some articles to conflict with each other, as Article 2 states that everyone has a right to life and a way of upholding this right is by vaccinating the population to protect the more vulnerable members of society.
Article 5 of the HRA stipulates that everyone has a right to liberty. This right is particularly complex because it can be deprived in order to prevent the spread of infection disease, provided that the method used is lawful, proportionate and unrestrictive (Article 5(1)(e)). Difficulties may arise when a care user lacking capacity declines to take the vaccine. Although it may be in their best interests to have the vaccine (which would uphold Article 2 HRA), the vaccine should not be administered if physical intervention is required. This was confirmed in the Court of Protection case of Re CR  EWCOP 19 (12 March 2021).
Article 8 of the HRA affords individuals the autonomy to make their own decisions. This a qualified right, meaning a public authority may interfere with it in the interests of public safety. This therefore means that care users should be able to decide whether or not to receive the vaccine, but this does conflict with keeping the public safe.
Article 9 of the HRA gives everyone the right to freedom of thought, conscience and religion. This therefore means that if someone denies the vaccine based on their beliefs, they should not be forced to receive it. This issue could arise with care users who follow particular religions, as their religion may condemn vaccines or the ingredients within them. Forcing someone to have the vaccine contrary to their beliefs could amount to discrimination. Similar to Article 8, Article 9 can be restricted for a legitimate reason. It could therefore be argued that public safety is a legitimate reason to introduce mandatory vaccines.
It is therefore difficult to say whether individuals will be forced to have the vaccines. On one hand, compulsory vaccines would contravene Articles 5, 8 and 9 of the HRA but on the other hand, these rights can be varied if it is in the public interests to prevent the spread of disease. It is probably more likely that the ‘vaccine passport’ concept may apply to future care home residents and that quarantine measures are maintained for care users who go out but refuse the vaccine.