Pharmacists will have to be vaccinated against COVID-19 before working in care homes in new regulations to be brought in from October this year. An announcement was made by the former health secretary Matt Hancock earlier this month (June 16) and the details were set out in a consultation response.
Mandatory vaccination does not yet apply to all pharmacists and it is not clear whether it will. There is to be a further consultation on whether to extend the policy to other health and social care settings.
Possible legal challenges
The implementation of this policy will be through amendments to secondary legislation. An equality impact assessment was published at the same time as the consultation response in compliance with the government’s Public Sector Equality Duty and it will likely be considered closely by those seeking to challenge the consultation response and subsequent legislation.
Some issues of concern may include:
- The extent of the proposal’s compliance with the Public Sector Equality Duty.
- Specific equality issues: without listing all the possibilities, there could be arguments made on the grounds of race discrimination – for example, if there is a higher proportion of vaccine hesitancy amongst black, Asian and minority ethnic groups, this could lead to a disproportionate number of staff members from those communities losing their jobs. Similarly, disability discrimination claims could arise: although there will be medical exemptions, there may be certain individuals who, while not being technically exempt, may still have reservations about taking the vaccine due to underlying health conditions.
- Breach of human rights: The European Court of Human Rights has previously established that compulsory vaccination is an involuntary medical intervention amounting to an interference with Article 8 of the Human Rights Charter, which enshrines the right to respect for a private and family life. However, in a recent Czech case it was held that compulsory vaccination in schools was proportionate to the legitimate aims pursued by the Czech state. An Article 9 (right to freedom of thought, conscience and religion) argument failed on the facts of that case.
What is the position for pharmacists?
It is not certain if community pharmacy would be included in any compulsory vaccination scheme rolled out to the wider healthcare sector. However, pharmacists have not previously shied away from legal challenges to unfavourable government decisions; take, for instance, the action by the Pharmaceutical Services Negotiating Committee and the National Pharmacy Association against the reduction in funding for the pharmacy sector in 2017, which was ultimately unsuccessful, but raised important challenges to the way government used data in justifying legislative action.
There are already frameworks in place that push NHS pharmacy professionals towards active support of the COVID-19 vaccination programme even if they fall short of compelling pharmacists to be vaccinated. Examples are:
- The Terms of Service for NHS Pharmacists: pharmacists already have obligations as part of their essential services in relation to promoting public health messages.
- The Pharmacy Quality Scheme (PQS): Part 2 of the 2020/21 PQS focuses on the response to and the recovery from the COVID-19 pandemic. The points framework rewards an increase in vaccinations.
What about professional regulation?
Turning to the pharmacy profession as a whole, the General Pharmaceutical Council (GPhC) said back in February 2021: “We are actively encouraging pharmacists and pharmacy technicians providing frontline healthcare services to get vaccinated at the earliest opportunity.”
This ties in with the stance taken by other healthcare regulators and also with the position statement issued by the Royal Pharmaceutical Society. This says vaccination is consistent with GPhC standards requiring pharmacists to make the care of the patient their first concern and act in their best interests.
It is less apparent what the GPhC says about the position of frontline pharmacy staff who are hesitant about vaccination.
Pharmacists and pharmacy technicians will be bound by professional standards. There is an interesting comparison that can be made with the stance taken by the GPhC in relation to dispensing emergency hormonal contraception. The GPhC guidance acknowledges the right of pharmacy professionals to practise in line with their religion, personal values or beliefs as long as this is in accordance with equality and human rights legislation and as long as person-centred care is not compromised.
However, as the science gets more precise about transmission, the tension between an anti-vaccination stance and the GPhC position increases. The consultation response in support of mandatory vaccination quoted a study which showed: “Those who do become infected three weeks after receiving one dose of the Pfizer/BioNTech or Oxford/AstraZeneca vaccine were between 38% and 49% less likely to pass the virus on to their household contacts than those who were unvaccinated.” If that can be extrapolated to the workplace, does this mean a failure to be vaccinated is incompatible with frontline work as a pharmacist? That is a difficult concept that the GPhC is yet to address.
One thing is for certain: it is a complex and nuanced area. Any steps to widen the ambit of compulsory vaccination to the whole healthcare sector would clearly be highly contentious.
Susan Hunneyball is consultant solicitor at Gordons Partnership law firm
This is a general overview and any views or reflections are the author’s own