High Court upholds vaccination mandate for health workers

April 28, 2022

A High Court ruling upholding the COVID-19 vaccination mandate for health workers shows the courts view it as “justified limitation” on individuals’ rights to refuse medical treatment, NZNO employment lawyer Jock Lawrie says.

Justice Francis Cooke — who in February overturned the mandate for New Zealand Defence and Police personnel — this month rejected a claim from two groups of health workers and educators that their rights had been breached.

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The groups — New Zealand Doctors Speaking Out with Science and New Zealand Teachers Speaking Out with Science — claimed the mandate was not a “demonstrably justified” breach of their right to decline medical treatment under the New Zealand Bill of Rights.

But on April 8, Justice Cooke ruled that the mandates were justified for the health/disability sector, in order to protect patients. He “did not accept” the right to refuse medical treatment was absolute, but that it was subject to “reasonable limits, prescribed by law, that are demonstrably justified in a free and democratic society”.

Cooke also said it was important for schools to limit risk for students — but acknowledged those mandates had since been lifted.

Jock Lawrie
Jock Lawrie

Lawrie said the decision confirmed that the courts viewed the mandate for the health and disability sector to be a “justified limitation” on individuals’ right to refuse medical treatment under the New Zealand Bill of Rights Act 1990.

The essential question faced by the court was whether the right to refuse medical treatment was absolute — to which the answer was “no”.

Lawrie said all rights within the New Zealand Bill of Rights were “expressly stated to be subject to reasonable limitations”.

The court accepted that when the vaccination mandates were imposed, the evidence supported the view that vaccination reduced both infection and onward transmission, as well as the serious effects of the illness.

“While that evidence was somewhat more equivocal in the face of the Omicron variant, it could not be said that the adverse impacts of the mandate were more significant than the public benefits to be obtained,” Lawrie told Kaitiaki Nursing New Zealand.

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In February, Justice Cooke found the Government requirement for New Zealand police and defence staff to receive two vaccine doses by March 1 to be unlawful, after a review was sought by three unvaccinated police/defence employees. The three claimed the mandate breached their human rights.

At that time, Justice Cooke said it did not affect any other vaccine mandates as “in essence” the police/defence mandate was imposed to ensure continuity of service and public confidence in those services, rather than stop the spread of COVID-19, he said.