You can download this guide as a pdf here 

15 December 2021

 

On 8 December 2020, the Covid-19 vaccination roll-out started in the UK. As of 16 November 2021, over 50 million people have received their first dose, over 46 million people have received their first and second dose, and over 13 million people have been given a booster/third dose. The Human Rights Act, the UK law, includes supporting people’s ability to make choices about their lives. This covers decisions about whether you want to agree to medical treatments, including having vaccines. The Human Rights Act also includes the right to not be discriminated against for a range of reasons, which include disability, and could also include vaccination status.  

It is important for everyone to know what their human rights are when thinking about choices around vaccinations. Some people may have been assessed as not having capacity to choose to have or to refuse the vaccine. This could include people with learning disabilities, Autistic people, people living with dementia or brain injuries, and/or people with mental health issues. Human rights law is important in helping make decisions about care and treatment, including vaccination.

This short guide sets out some useful information about these topics.

What is the vaccine?

Covid-19 (often referred to as Covid, Corona, Coronavirus, SARS-CoV-2), is an infectious disease caused by a newly discovered coronavirus (the name given to a group of similar illnesses). Whereas most people infected with Covid-19 experience mild to moderate flu like symptoms, there have been many deaths from this virus. There is an increased risk of death to people belonging to vulnerable groups, such as people with underlying health conditions. Covid-19 spread quickly globally and was declared a pandemic on 11 March 2020 by the World Health Organisation. As governments around the world have taken measure to combat the spread of the disease, scientists have worked on creating a new vaccine to help eliminate and control Covid-19.

There are now several different vaccines which all work in a similar way. We refer to them collectively as ‘the vaccine’ for ease. The vaccine can stop people getting very unwell from Covid-19 by helping the immune system to fight the virus without actually getting the illness. Like all medical treatments some people may have side effects from the vaccine and some people may not be able to take it for medical reasons.

In the UK, the vaccine is available from the NHS and it is free.  Initially the vaccine was offered to different groups of people at different times according to the priority list decided by the Joint Committee on Vaccination and Immunisation. Currently anyone aged 16 and over can get a 1st and 2nd dose of the vaccine (most children aged 12 to 15 are only being offered a 1st vaccine, though some are offered two depending on their circumstances). Booster vaccines are now being offered to provide longer term protection against getting serious ill from Covid-19. There is a priority order for receiving a booster dose, for more information visit the NHS website.

 

Which human rights are relevant when making choices around vaccines?

 

The Human Rights Act sets out 16 rights that every person in the UK has, and the legal duties on public bodies to uphold these rights. You can read all about the Human Rights Act in our new Easy Read Guide to the Human Rights Act.

The legal duty to uphold human rights applies in healthcare settings, this is because the NHS is a public body. This duty also applies to private groups or charities delivering NHS services. Staff working in these settings, have legal duties to respect, protect and fulfil human rights. This legal duty applies to the planning and delivery of vaccines. This guide covers the rights of people accessing healthcare services with regards to the vaccine. It is important to also note that staff working within healthcare settings have the same human rights, and these also need to be respected, protected, and fulfilled. A guide for staff can be found here.

There are several legally protected rights involved when considering people’s choices around taking the vaccine. In this short guide we highlight:

Here we cover issues including the duty to protect life and failures to protect life.

Here we cover issues including serious mental or physical harm and restraint.

Here we cover issues including mental health, mental capacity and restraint.

Here we cover issues including autonomy, wellbeing and “vaccine passports”.

Here we cover issues including the right to hold and act on strongly held beliefs.

Here we cover issues including groups of people being treated differently.

NOTE: This guide contains information, it does not constitute legal advice, and should not be used as such. The information contained here is about human rights law in the UK as of 15 December 2021; the law may have changed since then.

The Right to Life (Article 2 HRA)

This means public officials cannot deliberately take your life and includes a duty to take proactive, reasonable steps to protect life. This positive duty to take steps applies when official know (or ought to have known) that your life is at serious and immediate risk. When governments and public bodies make decisions on public health where is a large risk to life issue (e.g., administering a vaccine), they must think about protecting the right to life.

The right to life is what we call an absolute human right, meaning that the government (and public bodies and services, e.g., NHS or public health services) must protect this right. As an absolute right, the right to life cannot be lawfully restricted, including by healthcare staff (there are some very specific circumstances where actions resulting on loss of life by a government official will not breach the right to life, but these are limited to criminal justice or security areas).

Ways in which this right may be relevant to decisions on vaccines:

  • Rolling out the vaccine can be a seen as a reasonable step to protect people from a real and immediate risk. Since March 2020, over 170,000 people in the UK have lost their lives to Covid-19 (death recorded with ‘Covid-19 on the death certificate).
  • Prioritising the order in which people receive their vaccine dependant on the level of risk that they face from becoming seriously ill from Covid-19 and/or by the likelihood that they will be exposed to the virus (for example front line NHS staff working on covid wards). Prioritising certain groups is about protecting the right to life.
  • If a group of people who are at real and immediate risk of Covid-19, are not prioritised for vaccines ahead of people who face less risk, and in that time lose their life to the virus, then it may be that the government has failed to take reasonable steps to protect life.
  • If the vaccine causes the death of someone that was not made fully aware of the associated risks after they were encouraged to take it by the government and health officials, there are likely to be questions about whether the person’s right to life was sufficiently protected. (Note, details on side effects and complications (yellow card data) arising from Covid-19 vaccines can be found here.)
  • As part of the UK governments vaccination programmes, people who are not at an immediate risk from Covid-19 are being encouraged to receive the vaccine to curb infection rates which will help to protect the lives of others.

Protecting the right to life, not at all costs

The legal duty to protect life involves public officials taking reasonable steps, not all possible steps. In a health setting, what is reasonable is judged against broadly accepted medical opinion. It is also vital to remember that action to uphold the right to life, does not mean that other human rights are unimportant. Every one of us still has the right to autonomy (Article 8, HRA), to have a say over our body and life. We also all have the right to freedom of thought, conscience, and religion (Article 9, HRA), to hold and express our own opinions and beliefs. We have the right to be free from inhuman and degrading treatment (Article 3, HRA), to be protected from serious physical or mental harm.

Iis also important to understand that some of our legally protected rights are absolute, which means they can never be limited or restricted by the government. Others can be limited or restricted, in certain very specific circumstances in order to protect us or others from harm. To restrict one of our non-absolute human rights, the government must meet a three-stage test, which is explained below.

The Right to be Free from Inhuman or Degrading Treatment (Article 3 HRA)  

This right protects us all against serious physical or mental harm from a public body or their staff, and their failures to protect us, whether that harm is intentional or not. The right to be free from inhuman and degrading treatment is an absolute right which means any such treatment is not lawful. This applies whether it is done by public officials or happens because of their failure to protect. What is inhuman and degrading treatment is decided on a case-by-case basis and depends on how the treatment impacts you; it is person-centred.

Ways in which this right may be relevant to decisions on vaccines:

  • Denying people who are deemed to be clinically vulnerable the vaccine may fail to protect them from serious harm from Covid-19.
  • Measures taken to control the spread of Covid-19 by public bodies or people carrying out a public function may risk resulting in inhuman or degrading treatment. For example, long-term visiting restrictions on people in hospitals or care homes (or similar living arrangements) may cause significant harm to people’s mental and physical wellbeing. Additionally, when a person is deprived of their liberty (see below), they may be placed in a situation which can make them more vulnerable to harm, this could be in health, care, education, or prison.
  • This right could also be at risk where changes, and especially reductions, to care and support, leave people in an undignified situation, for example if these reductions have occurred due to redeployment of staff to administer vaccinations.
  • This right will be relevant to the use of restraint to administer the vaccine, which has a serious impact on a person’s mental and/or physical wellbeing. This is likely to be a risk when someone is deprived of their liberty and/or where “best interests” decisions are being made about them. (Mental capacity is explored further below). The use of restraint in such circumstances is likely to be highly questionable, as it should always be proportionate, and there will almost always be less restrictive options available. Restraint itself may very well be inhuman and degrading, which is never lawful.

The 3 tests for restricting a non-absolute human right: It is important to remember all 3 of these tests must be met for a public body to restrict a non-absolute right, such as those highlighted in the below explainer:

1.    Is it lawful? There must be a law that allows the restriction being proposed by the government or staff member in a public body or service. There is no general law in the UK that requires people to have the Covid vaccine (vaccinations are not mandatory for members of the public). The situation is different for some workers in health and care settings where the employer may have a legal duty to exclude staff who are unvaccinated, you can read more on this in the BIHR Covid-19 vaccine and human rights: A short guide for staff working in public bodies. The UK government has now changed the Health and Social Care Act so that some staff who work with vulnerable people in a face-to-face role need to be vaccinated to protect the people they work with and support. This could be about the right to life in the Human Rights Act (Article 2, above), or the health and safety legislation. The following 2 tests still need to be met.

2.    Is there is legitimate reason for the restriction of the human right(s)? These reasons are written down in the human rights themselves. They are usually for national security, public health, safety or order or to protect the person or wider community. Action, which restricts a person’s non-absolute human right, to protect an individual or a group of people from a public health threat, such as a pandemic, falls within this test. However, the next test also needs to be followed.

3.    Is the restriction proportionate? This is very important, and in practice this is where lots of proposed restrictions to human rights are challenged and different actions or decisions are agreed. Proportionality means identifying the various options available and choosing the one which is least restrictive to achieve the legitimate aim. This means the public body should understand all the available alternatives to the restriction they are proposing and making a clear, reasoned decision about which option they have chosen and why. This should include consideration of the person’s situation. In particular, it will be important to ensure that a restriction is not discriminatory; a restriction which may appear to be the least restrictive must also be non-discriminatory.

 

Right to Liberty (Article 5 HRA)

The right to liberty protects our right to not have extreme restrictions placed on our movement. It is not a right to do whatever you want. A person is deprived of their liberty when they are living under constant supervision and/or control by a public body or service and they are not being free to leave. 

The right to liberty is a non-absolute right, this means it can be restricted when necessary, under very specific circumstances. This can include for health reasons such as being kept in hospital under the Mental Health Act. The right to liberty can also be restricted for criminal justice reasons such as being imprisoned after being convicted of a crime. A deprivation of liberty is only allowed if it is lawful, legitimate, and proportionate (the least restrictive option). The right to liberty sets out many safeguards to protect liberty (e.g., speedy review of decisions to restrict liberty by an independent body).

Ways in which this right may be relevant to decisions on vaccines:

  • The right to liberty in the Human Rights Act says an individual may be deprived of their liberty for the purpose of ‘the prevention of the spreading of infectious diseases’ (Art. 5, (e)). Crucially, if a person’s liberty is restricted for this reason, it must also be lawful and proportionate, to be proportionate it must be the least restrictive option, and all the safeguards must apply.
  • The use of restraint to administer the vaccine would likely be a restriction of a person’s liberty. This is likely to be a risk where “best interests” decisions are being made about a person (which we explain below). It is important to note that in a recent legal case the Court of Protection, whilst authorising the vaccine to be given to a person assessed as lacking mental capacity to make the decision for themselves, said: “I am not authorizing physical intervention in order so to do.” (our emphasis). This case involved Mr CR, who is described as having epilepsy and severe learning disabilities, and 'clinically vulnerable' to Covid-19. See also our section on the right to be free from inhuman and degrading treatment, as restraint may also result in this right being breached.

Mental capacity and mental health are central to the issue of Covid-19 vaccines and upholding people’s human rights:

People who are detained under mental health law

When a person is detained under the Mental Health Act (in England and Wales), The Mental Health Care and Treatment Scotland Act (in Scotland) or the Mental Health (Northern Ireland) Order, the legislation may allow for the person to receive medication and treatment that they do not consent to. However, this is, if and only if, that treatment is of medical benefit to treat the condition for which they have been detained. There may be some misunderstanding about the powers granted under mental health legislation. It is therefore important to be very clear, Covid-19 is not a mental health condition that people can be detained for, so mental health law does not allow for forced vaccinations for detained people.

People with mental capacity issues

When we say mental capacity, we mean our everyday ability to make decisions about what happens to us, including decisions about care and treatment. The legal starting point is that everyone has mental capacity to make a decision about their lives, including health and medical decisions.

However, a person’s mental capacity might be affected for a number of reasons, for example if they have mental health issues, a learning disability, dementia, a brain injury or if they are intoxicated. A person’s ability to make decisions can also fluctuate. If there are concerns about a person’s capacity to make a decision, mental capacity legislation across the UK sets out legal tests and rules for assessing capacity. The Mental Capacity Act (in England and Wales), The Adults with Incapacity (Scotland) Act and the Mental Capacity Act (Northern Ireland).

Mental capacity is about each specific decision a person can make at a specific time. Legally there is no such thing as generally lacking capacity as each decision needs to be looked at on a case-by-case basis. It cannot be assumed that a person lacks capacity to make a decision. Steps must be taken to support people to make a decision, and everyone has the right to make unwise decisions (This is part of our right to autonomy in Article 8 of the HRA, explained below). If a person is assessed as lacking capacity to make a decision about medical treatment, then a best interests decision will be made by either staff in public bodies/services, or by the person’s Lasting Power or Attorney or Deputy for health and welfare, if they have one. A person’s decision-making ability can fluctuate so it is important that there is a process of review, and that people are re-assessed to enable them to make decisions about their own lives as much as possible.

Mental capacity and human rights are relevant when making decisions about a person’s health or care, including having the Covid-19 vaccine. When a person has been assessed as not having the capacity to make a choice about vaccination, a best interests decision which is compatible with human rights should be made. All laws, such as the Mental Capacity Act, should be applied in a way that respects the rights in the Human Rights Act. This means the decision-maker should treat the person with dignity, consider their wishes and feelings and support the person to participate in decisions as much as possible. You can find out more about mental capacity in our guide, Mental Health, Mental Capacity: My human rights.

If a person lacks capacity to make a decision about having the vaccine, it may sometimes be very difficult to find out what their wishes or feelings are about it. Sometimes other people in the person’s life might disagree with the best interests decision. When this happens a case can be taken to the Court of Protection for a judge to decide what is in the person’s best interests, which will include considering their human rights.

If a best interests decision has been made that someone should be vaccinated, they should be supported to take part in this process as much as possible, including understanding and reducing any worries they have, and providing information in a clear and accessible way. There has been some discussion about the use of restraint to administer a vaccine being acceptable for people who lack capacity; this is questionable. The use of restraint is highly unlikely to be the least restrictive option, and its use would raise questions about whether that person’s human rights are being respected, as explained in this guide. It is difficult to see how this would be proportionate.

At the time of writing there have been at least 4 published cases at the Court of Protection about whether the vaccine can be administered to someone who lacks capacity to make this decision for themselves. This includes Mr CR (above),Mrs E, V, and SS (the cases are anonymous to respect people’s privacy). It is important to note that every case must be taken on its facts, and whilst the cases have, so far, authorised the use of the vaccine, this does not enable a blanket approach to the issue. The cases have followed the position of human rights law, and mental capacity law, which requires focussing on finding out what the wishes and feelings of the person are. BIHR have written about these cases here

Right to Respect for Private and Family Life, Home and Correspondence (Article 8 HRA)

Covered by Article 8 of the Human Rights Act, this right protects our autonomy (to make decisions about ourselves), our participation in the community, our family life, our privacy and more. This right is far reaching and has four parts, this explainer focuses on the right to a private and family life, which are central to discussions and choices on vaccines.

You can read about the Right to Respect for Private and Family Life, Home and Correspondence in more detail here.

Article 8 is a non-absolute human right and can be restricted in specific circumstances. If a public body plans to restrict the right to private and family life, they must do so in a lawful, legitimate, and proportionate way, this is explained above.

The right to private and family life includes:

  • Physical and mental wellbeing (harm which is not so serious to be inhuman and degrading treatment, but still impacts you)
  • Autonomy, meaning being able to make decisions about your life, including “unwise” decisions. This includes decisions about health and care including medical treatment and vaccinations.
  • Being able to develop and maintain relationships with people.
  • Being a part of a community if you choose to.
  • Having your private information kept private. This includes medical information

 Ways in which this right may be relevant to decisions on vaccines:

  • Physical and mental wellbeing: The Covid-19 vaccination programme has been successful in helping decrease rates of infection and protect vulnerable people from harm, as vaccinated individuals are less likely to become infected than unvaccinated individuals. Studies also show that there is a far lower risk of becoming seriously ill or dying from covid if you are vaccinated. As vaccines passports may encourage and incentivise vaccine take up, they could help to protect wellbeing.
  • Autonomy: people working in public bodies or services (e.g., social workers) must respect an individual’s decisions, even if they are considered to be ‘unwise’. If a person lacks mental capacity to make a decision, the person should still be able to take part in making their own decisions as much as possible and have their wishes and feelings considered and respected.
  • Some people may agree to have the vaccine but, on the day, feel worried about it and decide they don’t want it anymore. People can change their mind - this is all part of the right to private life and having autonomy over our decisions. If someone has capacity to make a decision about the vaccine, this must be respected. A person cannot be forced to have the vaccine. It is important to remember that this right also applies to people who may lack capacity to make the decision about having the vaccine. Staff in public bodies and services should think very carefully before the use of any restraint. Any use of restraint in this situation would need to meet the lawful, legitimate and proportionate tests. As noted above, it is difficult to see how using restraint would be proportionate, and in itself could risk people’s human rights.
  • This right may be impacted by failures to protect people from risk of harm caused by measures to address Covid-19, which are not categorised as inhuman and degrading treatment. This could include further long-term visiting restrictions which cause significant mental and physical wellbeing issues as detailed here.
  • Similarly, issues caused by the distribution of vaccines, such as redeployment of staff, may cause changes for people that rely on care and support to live ordinary lives. For some people this may lead to inhuman and degrading treatment, as noted above. Where the impact on someone has not reached the level of seriousness to cross the threshold into inhuman and degrading treatment, this right which protects wellbeing, may be risked. Again, any restriction must meet the lawful, legitimate and proportionate tests.
  • Autonomy: You may be asked to be vaccinated and hold a vaccine passport to protect your right to life and to protect others. The right to a private and family life must be considered if this is the case because the vaccine is optional (the law does not require or mandate people to have the vaccine*), and you have autonomy to make decisions about your own health if you have the mental capacity to do so. *The situation for employment in some health and care roles is different, we explained the changes to the law on this above.
  • All public authorities, such as the NHS and the Police have legal duties under the Human Rights Act to respect and protect your private information. If a vaccine passport is requested by a public authority, for example if you were entering back into the UK after travelling abroad and a UK border force officer requested to see your Covid Pass, they have legal duties under the Human Rights Act to protect any personal information held within the vaccine passport under Article 8: The Right to Respect for Private and Family Life. BIHR have produced an explainer on vaccine passports, which can be found here 

Right to Freedom of Thought, Conscience, and Religion (Article 9)

This right recognises that people can believe and think what they like, this is absolute and can never be restricted. Article 9 specifies a clear difference between belief and manifestation. The ability to manifest, act on, or exercise a belief or thought is non-absolute. This means that the way in which we act on our beliefs can be restricted if the 3 tests of lawful, legitimate, and proportionate are met.

How might this right be relevant to vaccine passports:

  • Whilst people have the right to believe that the vaccine is not the right thing for them, in certain circumstances the manifestation of that belief may lawfully be restricted if the 3-stage test is met. An example of this might be staff in public bodies/public functions, such as care staff that do not want to be vaccinated and/or share their vaccination status. Recently, changes to the Health and Social Care Act 2008 set out that all staff working in CQC regulated care settings and NHS settings (from April 2022) that are in contact with vulnerable people must be vaccinated to do their roles.
  • People who do not want to be vaccinated, may feel that mandatory vaccination policies/law and/or vaccine passports as a condition of entry to certain spaces might be a restriction of their right to manifest a belief. If all parts of the 3-stage test are met then such restrictions would be allowed.
  • The Human Rights Act ensures that your human rights are protected. However, these protections are not ‘at all costs’, nobody may use their rights to infringe the rights of other people, as set out in Article 17 of the Act. For example, it could bre argued that staff in health and care services who, on the basis of their freedom of beliefs, decide not have a Covid-19 vaccination, may pose a real and immediate risk to life of people relying on health and care services, many of whom are medically vulnerable. Such a risk to life could violate patient/service users Article 2 (Right to Life) and Article 3 (Free from Inhuman or Degrading Treatment) rights, both of which are absolute rights. You can read more on this in the BIHR Covid-19 vaccine and human rights: A short guide for staff working in public bodies.

The Right to be Free from Discrimination (Article 14 HRA)

The Human Rights Act protects our right not to be discriminated against in relation to any of the other human rights in the Act. This right means that we should all be able to enjoy our human rights in the same way, without discrimination. This right protects against discrimination on a range of grounds including the nine protected characteristics described in the Equality Act (England, Scotland, and Wales) and Section 75 of the Northern Ireland Act 1998., and other grounds for discrimination, e.g., socio-economic status or combined grounds, e.g., being a young, black, disabled woman.

Regardless of if you are vaccinated against Covid-19 or not, you should not be discriminated against. Differential treatment of people may not be discriminatory if it can be objectively and reasonably justified.

Ways in which this right may be relevant to decisions on vaccines:

  • The prioritisation of people, e.g., those clinically vulnerable to Covid-19, to receive the vaccine, is a differential treatment that can be objectively and reasonably justified. Denying the prioritisation of groups that can demonstrate clear vulnerability, may not be objectively and reasonably justified. Denying the vaccine to particular groups of people, without objective and reasonable justification could amount to discrimination. Additionally, if a person hasn’t had the vaccine for clinical reasons, any requirements to have any type of vaccine passport (and access to places, services, etc.) may lead to discrimination against certain groups. Public bodies would need to decide if this discrimination could be objectively and reasonably justified. You can find out more about vaccine passports in the BIHR explainer here.
  • Ensuring people are provided with the support they need to be able to access the vaccine. This could include ensuring information about the vaccine is accessible so people can make an informed decision and having reasonable adjustments in place for people when the vaccine is being administered.
  • It is important to remember that public authorities, or those carrying out a public function are never allowed to deny your human rights outlined in the Human Rights Act based on lack of resources alone. This includes staff shortages, not enough money in a local authority budget etc.

What happens next?

At the time of publication (Dec 2021), Covid-19 has not gone away and there is still a range of guidance and rules in place across the UK to help keep us all safe (and this may be different between different nations in the UK). This is an ever-changing landscape, and often advice and guidance change quickly to reflect infection numbers and risk. The vaccination programme in the UK is continuing, and being expanded upon with the introduction of booster jabs for all eligible adults. The vaccination programme runs parallel with the UK Government’s guidance and safety advice. It is important to remember that there is also guidance in place from the devolved governments in Northern Ireland, Scotland and Wales.

Where can I find more information?

BIHR Vaccine Hub:

https://www.bihr.org.uk/covid-19-vaccine-and-human-rights

 

BIHR Covid Resources:

The Covid-19 Vaccine and Human Rights: A short guide for staff working in public bodies

Easy Read Guide to Coronavirus (Covid-19) Vaccine and Human Rights

Vaccine Passports, Heath Certificates, and Covid Certifications

Blog: 4 Important Cases about the Covid-19 Vaccine

Blog: What does the ECtHR ruling on compulsory vaccination mean in the UK?

 

Other resources:

UK Government Easy Read Guide on Covid-19 Vaccination

UK Government Vaccine Guide for Adults

NHS inform Scotland Coronavirus (Covid-19): Advice for key workers

Public Health Wales Resources of Health and Social Care Professionals

NHS guidance to support Covid-19 Vaccine uptake in frontline staff

ACAS: getting the coronavirus vaccine for work

UK Government Easy Read Vaccination Guide

Mencap Easy Read Vaccination Information

UK Government Vaccine Guide for Adults (not easy read)

You can find information about supporting people to make vaccine decisions below:

The Down’s Syndrome Association’s Quick Guide ‘Supporting me to make a decision’

 Return to our vaccine hub for more resources by clicking the button below.