The High Court has dismissed a challenge seeking to overturn the Government’s vaccination mandates for health and education workers. Photo/NZME
A legal challenge questioning the lawfulness of the Government’s Covid-19 vaccination mandate for educators and health workers has failed in the High Court.
The judicial review, brought to the court by New Zealand Teachers Speaking Out with Science (NZTSOS) and an affiliated group of doctors (NZDSOS), sought to have the vaccination order thrown out.
The group claimed the vaccination mandate is not a “demonstrably justified” breach of the Bill of Rights, namely the right to decline medical treatment.
But in a reserved decision released today, Wellington High Court Justice Francis Cooke determined that the mandates were lawful – deemed a demonstrably justified limit on the right to refuse medical treatment when they were imposed.
The judgment vindicates the decision of the Government to implement the mandates.
Covid-19 Response Minister Chris Hipkins said the vaccination orders still in effect for the health sector play an important role in keeping New Zealanders safe.
In his decision, Justice Cooke agreed that the ability to refuse medical treatment was the right of all New Zealanders, but he determined that right was not absolute and is subject to reasonable limitations.
“I accept that the right to be free to refuse medical treatment is a significant one which is based on individual autonomy,” Justice Cooke said.
“It is also reflected in the concept of informed consent that is central to the practice and ethics of medicine. But I do not accept that it is an absolute right. It is subject to reasonable limits, prescribed by law, that are demonstrably justified in a free and democratic society.”
Justice Cooke said at the time mandates were introduced, there was a clear justification for the orders in both sectors.
In the health and disability sector, the close interaction between health professionals and patients and the potential vulnerability of those patients justified the mandate.
The arguments in favor of the mandate were less significant for some health professionals such as dentists, but the potential justification nevertheless arose, Justice Cooke said.
Similarly, in the education sector, it was important for students to be able to learn in a school environment and that environment created a potential transmission risk.
While justified overall, the justification for the education mandate wasn’t as clear-cut as the mandate covering the health sector, the judge found.
Justice Cooke acknowledged subsequent Government announcements since the hearing of the case, which resulted in mandates being lifted for educational workers as of last Tuesday – a recognition of the highly transmissible but less severe Omicron variant which is now New Zealand’s most dominant strain.
Responding to the decision, NZTSOS deputy chairperson Mike Shaw claimed the judgment showed the court’s willingness to uphold Government policy.
“Today’s ruling reflects that the courts of New Zealand appear to be prepared to
support the Government’s determination to overrule the NZ Bill of Rights in spite of all of the evidence presented before the court that the vaccine mandate order is not fit for purpose.”
The group would go away and consult with its legal team, but it was likely the decision would be appealed, Shaw said.
Covid-19 Response Minister Chris Hipkins said the ruling affirmed mandates could be used in certain higher-risk settings.
“The mandate for health and disability workers was found justified and remains in place.
“While the majority of mandates have now been lifted, they continue to play an important part in protecting the vulnerable and ensuring the continuity of services in health settings, at the border where new variants come in, and in prisons where outbreaks could be dangerous. “
He said the Government would continue to investigate the latest information and might make further refinements to the scope of those remaining mandates where appropriate.
Earlier in February, Justice Cooke heard a similar case related to the vaccination mandates for Police and Defense Force staff. Cooke ruled that those mandates were not justified breaches of the Bill of Rights, and therefore unlawful.
The mandates covering those sectors were also lifted last Tuesday.