1 April 2021

You can download this guide as a pdf here 

On 8 December 2020, the Covid-19 vaccination roll-out started in the UK. As of 20 March 2021, over 27 million people have received their first 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.

We have also created an Easy Read guide to Covid-19 vaccinations and human rights. You can read this guide here.

This short guide sits alongside another short guide we have produced for staff working in public bodies, and their rights in relation to the Covid-19 vaccination. You can access that guide here.

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 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. The vaccine is being offered to different groups of people at different times according to the priority list decided by the Joint Committee on Vaccination and Immunisation.

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. You can find out more about the human rights of staff in our short guide to the Covid-19 vaccine and human rights for staff working in public bodies.

There are several legally protected rights involved when considering people’s choices around taking the vaccine. Some of these are listed below.

 

The right to life (Article 2 HRA)

This means that 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, such as the administration of the 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 126,000 people in the UK have lost their lives to Covid-19.
  • 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, there have been no reported deaths as a direct result of taking the vaccine up to the date of publication.)
  • 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.

It is 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 lawfully. 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 are 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:

  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. For example, there is currently no law that allows for compulsory vaccinations (the sections of the Health and Social Act 2008, which replaced previous public health law, gives relevant Government Ministers the power to make regulations to prevent danger to public health and prevent the spread of infection (this is where the Coronavirus Regulations come from). The Act explicitly says this power does not include mandatory treatment or vaccination, in section 45E). 
  2. Is there is legitimate reason for the restrictions? These are written down in the human rights themselves. They are usually for national security, public health or order or to protect the person or wider community.
  3. Is the restriction proportionate? This is very important, and in practice where lots of proposed restrictions to rights are challenged. Proportionality means identifying the various options available and choosing the one which is least restrictive to achieve the legitimate aim. This means understanding all the alternatives and making a clear, reasoned decision about which option is chose and why.

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 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 (as well as inhuman treatment, discussed above). 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.

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 3 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) and Mrs E and V (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 focusing on finding out what the wishes and feelings of the person are. We have discussed these cases in a new blog, which you can read here.

Right to private and family life, home and correspondence (Article 8 HRA)

The Human Rights Act protects our right to respect for private and family life, home and correspondence. This right has four parts. “Home” is about being able to enjoy the place you call home. “Correspondence” is about your ability to communicate and keep in touch with people. Correspondence refers to not just letters, it also states that individuals have a right to ‘modern communication’, such as social media and text messaging.

Many aspects of private and family life as set out in the Human Rights Act are relevant to issues on choices around vaccines, in particular, 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.
  • Being able to develop and maintain relationships with people.
  • Being a part of a community, if you chose to.
  • Having your private information kept private.
  • Contact with your family, especially when you have been separated.

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

  • 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’. Even 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, and 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 can include 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, this right, which also protects wellbeing, may be risked. Again, any restriction must meet the lawful, legitimate and proportionate tests.

Vaccine passports or certifications and declaring your vaccine “status”

This right may be impacted by potential restrictions on people who choose not to have the vaccine. At the time of writing there has been a lot of discussion about how far people can be required to have the vaccine for both work (e.g., working in a care home) and leisure purposes (e.g., accessing theatres or large gathering events). (We are not covering international travel in this guide).

There has been discussion of “vaccine passports” or “certificates”, which is not just for international travel, but could be about daily activities. The privacy part of this right may be risked if people have to declare their immunisation status (whether or not they have had the vaccine). Human rights case law says how important it is to protect people’s personal data, including medical information. This is considered sensitive and so should be subject to strict rules around processing and sharing data, especially as sharing medical data can impact a person’s social and employment situations. Again, any restriction must meet the lawful, legitimate and proportionate tests. Currently, it is likely that such measures may not meet these tests.

There is no specific law on this issue, although at the time of writing the UK Government has just held a (very short) consultation on covid certification. This may lead to a law allowing such processes. The legitimate purpose would likely be to protect the employees and others. Whilst there is still mixed evidence about the ability of the vaccine to stop transmission this may be more certain in coming months, and protecting the person themselves may be, especially if their work puts them in high-risk situations, sufficiently legitimate. However, the proportionality element may be more difficult to evidence as the least restrictive option. This is especially the case at the current time, where vaccinations are being distributed via prioritisation and so some people cannot (yet) access it. There may also be some people who cannot take the vaccination, e.g., for medical reasons or because the advice is not to take the vaccine at that time (e.g., pregnant women, at the time of writing). Additionally, there will be people who have strongly held, possibly religious, beliefs which mean they will not have the vaccination. These issues also raise the potential of discriminatory treatment against particular groups of people who cannot or do not want to have the vaccine.

This is an evolving area or human rights law, there is a case due to be heard in the European Court of Human Rights in April, which is about people having been penalised for not taking compulsory vaccinations. These cases are not about the Covid-19 vaccine and they do not involve the UK; but the court may provide useful information about vaccinations and human rights. It is also important to remember that other types of law may be relevant here, such as employment law, if employers are seeking to put vaccination requirements in place. 

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. But the ability to manifest, act on or exercise that belief or thought can be restricted. Restrictions must meet all the 3 tests of lawful, legitimate, and proportionate. Legitimate reasons include public safety/order, health, and to protect the rights of others. The lawful and proportionality elements also need to be met to restrict the exercise of this right.

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

  • Some people might not believe that the vaccine is the right thing for them and want to say no. People cannot be forced to have the vaccine against their wishes; it is difficult to see how the 3 tests to restrict this right, and force a vaccine, would be met. (See also our information on mental capacity, above).
  • Some people may not want the vaccine for religious reasons. For example, some religious groups have raised concerns about where ingredients in the vaccine have come from. Saying no to the vaccine on religious grounds must also be respected; it is difficult to see how the 3 tests to restrict this right, and force a vaccine, would be met. 

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 (e.g., sex, race, colour, language, religion, political or other opinion … or other status). These include the nine protected characteristics in Equality Act, 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.
  • 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.

There are also a range of potential discrimination issues that may be raised by vaccine passports or certificates, noted above.

What happens next?

The vaccination programme in the UK is continuing and runs parallel with the UK Government’s roadmap to remove the lockdown and social contact restrictions (it is important to remember that there are also plans in place from the devolved governments in Northern Ireland, Scotland and Wales). The UK Government has said that the number of people who have had their vaccine is one of the things they are thinking about when they decide to remove some of the restrictions.

Where can I find more information?

BIHR have produced several resources about vaccines and human rights, including an Easy Read guide and an explainer on vaccine passports and human rights. You can find all of these resources here.

You can find out more about the Covid-19 vaccine in the resources below:

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

Watch this space – BIHR are working on more resources about vaccinations including:

  • A blog about the ECHR ruling on mandatory vaccination in the Czech Republic.

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 1 April 2021; the law may have changed since then.