Fiction:
Employers can insist on workers having a vaccine.
Law:
The offence of ‘battery’ is the intentional or reckless infliction of unlawful force. For a doctor, nurse or any person to administer a vaccine without the ‘informed consent’ of the recipient is to commit a criminal offence. This is likely to be charged as ‘assault and battery’. A person who intentionally encourages or assists the commission of an offence is themselves guilty of an offence contrary to Section 44 of the Serious Crime Act 1997. There are a number of employers who might read this article very nervously….
Consent is no defence
In a judgment still binding on Courts throughout the UK, the House of Lords (now the Supreme Court) held that where people commit violence against each other, even if the violence is in private and by mutual consent, an offence may still be committed. Reasoning that “society is entitled and bound to protect itself against a cult of violence”, the Court held that consent is not a valid defence. (R v Brown [1993] UKHL 19 (11 March 1993)
The facts concerned sadomasochistic practices of a group of men where the least serious offence charged and upheld was assault occasioning Actual Bodily Harm (ABH). ABH is a step up from battery in terms of seriousness. ABH is typically charged for scratches, bruises and bite marks. It may also embrace puncture of the flesh with a needle. Coming forward to 2020 and 2021, it would be difficult to imagine that puncture with a needle and injection of a foreign substance to the body, liable to cause adverse reaction to the recipient, is anything but very serious indeed.
Informed Consent and Criminality
In the medical context, it has always been essential for someone administering a vaccine to know that the patient is giving their informed consent to receive it. The requirement for informed consent is fundamental to medical practice. (For further information about informed consent, see section 8 of the letter Stop Testing in Schools.)
The criminality arising under threat of ‘no jab no pay’ arises by the following logical steps:
- By definition, if agreement is coerced, it is not by consent; if access to the benefits of work is only given in return for consenting to a vaccine, that consent is not free
- A nurse giving the vaccine is required to ensure the worker gives informed consent, current at the time of treatment
- If a nurse knows that the worker’s consent is not free but is given under threat of ‘no jab no pay’ (or any detriment or bribe), the nurse commits an offence by administering the vaccine
- The employer who has encouraged or assisted that offence, by making the threat, or by facilitating (and thereby assisting) the vaccine appointment, is guilty of an offence under Section 44 (and/or section 45 and/or section 46) of the Serious Crime Act 1997
Further, and especially given public debate and publicity on the issue, it offers no defence for medical practices to turn their heads away from the circumstances in which any patient submits to a vaccine. Given the numbers of people being vaccinated, to take for granted that none are under threat, or that those who are will speak up of their own accord, is reckless. They will, after all, have shown submission to the threat just by turning up.
The doctor/nurse is therefore under a positive duty to ensure informed consent is given. That requires taking steps, which should be recorded prior to treatment if they wish to defend themselves against criminal prosecution, to ensure the patient is under no threat of ‘no jab no pay’ or similar. They will be reckless to conduct their practice otherwise.
The Courts can defend the people
We are unaware of this issue of criminality being raised before this post. However, most of us could not have imagined circumstances in which the freedom of society has been taken away by this Government. If ever there was a time for the Courts to exercise common law powers to stop this particular cult of violence, at least against large unwilling sections of the public, surely it is now.
If support were needed for the Courts in stepping up, they may look to Europe. The Right to Privacy under Article 8 of the European Convention on Human Rights (ECHR), which still applies in the UK even after Brexit, includes the right to bodily integrity.
That right is reflected in the recent statement of the Council of Europe, of which the UK is one of 47 member states, whose focus is the promotion of respect for human rights under the ECHR. It reflects the moral compass of the European Union and on 27th January 2021 published and adopted the resolution of its members to:
7.3 with respect to ensuring high vaccine uptake:
7.3.1 ensure that citizens are informed that the vaccination is NOT mandatory and that no one is politically, socially, or otherwise pressured to get themselves vaccinated, if they do not wish to do so themselves;
7.3.2 ensure that no one is discriminated against for not having been vaccinated, due to possible health risks or not wanting to be vaccinated
If there is to be any individual freedom left in this country, when asked are the Courts really going to permit coercion to vaccinate through denial of access to work? It is time for a prosecution by the CPS but, if necessary, by private prosecution.
Civil Protection of Employment Rights
If our analysis above is correct, then it also opens up remedy for any worker or applicant for work under threat, regardless of their length of service and without need to rely on disability or inability to have a vaccine. They may not, for example, have unfair dismissal rights before an Employment Tribunal, but they may still apply to the Courts for an injunction to restrain the employer from making any such threats.
Health workers
In passing, the analysis above applies to health workers as it does to anyone else. The argument is also relevant to ‘fairness’ in unfair dismissal claims and, regardless of the views of some legal commentators, any health worker is entitled to ask an Employment Tribunal to demand from the employer evidence as to why, in the particular circumstances of their job and their workplace, a vaccine is needed and has real benefit. Most lawyers seem to have paid little attention to evidence.
Evidence, perhaps, that the vulnerable are already protected, or that a worker has natural T-cell immunity already, or if other measures are available, or if the ‘case’ numbers are so low, or if the risk of adverse effect is comparatively greater than the risk from virus, or if the vaccine may be ineffective against transmission or against newly publicised variants or etc. etc. etc….
When it comes to evidence, scary headlines in mainstream media and press releases from No. 10 ought not to cut the mustard.
Whistleblowing
Any employee who raises the above with their employer and finds themselves subject to dismissed as a result may also be protected under whistleblower legislation and expert legal advice should be sought without delay. In seemingly strong cases, the Employment Tribunal has power to reverse the dismissal provided the application is made within 7 days.
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Warning: Law and circumstances can change very quickly. Please note the date of publication of any blog post and check for any updates on the issues addressed. In any event, we do not condone or encourage breaching the law and neither the above nor any information posted on this website constitutes legal advice. It must not be relied upon as such and specialist legal advice should be taken in relation to specific circumstances. Please read our disclaimer.
fantastic work !
Is the offering of money to take the vaccine by the employer illegal?
Check item #3 in the Informed Consent section above.
What about PCR and lateral flow testing. If a health care assistant refuses to carry out testing for themself or to test visitors who visit patients for fear of harming another human being where do they stand. If a company tells visitors as they arrive they need to undergo a lateral flow test before they are permitted to visit a loved one is that legal. This is UK.
Exactly – am going through this at work right now – they are offering lateral flow as a medical procedure but giving not enough info to make an informed consent – surely denying a medical procedure should not be a reason to stop access to your usual work or visit to loved ones?
Brilliant blog do you have a template letter for an employer insisting on the jab?
Thank you for your continued work in helping the people stand against the tyranny
Great info and brilliant help for the people 🙂
“Teachers Sue LA School District Over COVID Vaccine Mandate
Groups representing teachers, counselors and employees say the Los Angeles Unified School District’s vaccine mandate violates federal law and basic human rights.
Employees of the second-largest school district in the U.S. filed suit last week to prevent the district from mandating COVID-19 vaccines as a condition of employment.
California Educators for Medical Freedom, with assistance from the Health Freedom Defense Fund (HFDF), filed a federal lawsuit March 17 against the Los Angeles Unified School District (LAUSD).
In a press release, HFDF said LAUSD’s vaccine mandate violates federal law and basic human rights by requiring employees to take an experimental vaccine in order to remain employed.
All COVID vaccines available in the U.S. — Pfizer, Moderna and Johnson & Johnson — are approved under the U.S. Food and Drug Administration’s Emergency Use Authorization (EUA). By the FDA’s own definition, that makes the vaccines “experimental” until or unless the FDA licenses them.
School employees alleged in their complaint that the statute granting the FDA power to authorize a medical product for emergency use, 21 U.S.C. § Section 360bbb-3, requires that the person being administered the unapproved product be advised of the benefits and risks, and of his or her right to refuse the product.
The FDA issued a Fact Sheet for Health Care Providers and a Fact Sheet for Recipients and Caregivers for each of the three vaccines approved for emergency use. The fact sheets state, among other things, that a provider must communicate information to the recipient prior to administering the vaccine — including that the recipient has the option to accept or refuse the vaccine.
In their lawsuit, employees allege that Section 360bbb-3 recognizes the “well-settled doctrine” that medical experiments, or “clinical research,” may not be performed on human subjects without the express, informed consent of the individual receiving treatment.
According to HFDF, the fundamental right to avoid imposed human experimentation has its roots in the Nuremberg Code of 1947, which was later ratified by the 1964 Declaration of Helsinki, further codified in the United States Code of Federal Regulations and adopted by the California Legislature. It says that “no person subject to this state’s jurisdiction may be forced to undergo the administration of experimental medicine without that person’s informed consent.”
Since adoption of the Nuremberg Code, free nations have recognized that forced medical experimentation of any kind is both inhumane and unethical. “There is no “pandemic exception” to the law or the Constitution,” plaintiffs stated in their complaint.
“This is a very important case for educators all across America and is likely to set a precedent for all of us,” said Michael Kane, New York City teacher and founder of NY Teachers for Choice.
“Sometimes all you need is someone to stand up and say ‘No’ to remind everyone that we are completely within our rights to resist government overreach. And that is what this is — government overreach.”
Kane said the LAUSD teacher’s union “definitely plays a role in all of this” and that LA teachers need to lobby their union and threaten to pull their money from supporting the union if it doesn’t support their right to choice. “Rank-and-file union members must hold their union leadership accountable and force them to represent those who are pro-choice for all medical procedures,” Kane said.
The complaint states that employees of LAUSD last month began to receive communications from Superintendent Austin Beutner and other representatives of LAUSD instructing them to make appointments to get vaccinated.
None of the communications to employees included the information from the fact sheet required by the FDA to be given to vaccine recipients under EAU.
On March 4, guidance from LAUSD human resources was given to employees that stated: “The Moderna vaccine is currently being administered by Los Angeles Unified nurses and other licensed healthcare professionals to Los Angeles Unified employees. You will schedule your appointment […]. You will provide proof of vaccination via the DailyPass for time reporting purposes.”
As The Defender reported March 10, Daily Pass is a COVID tracking system developed by Microsoft that will scan employees and students using a barcode before they can enter school each day. LAUSD is the first school district to announce that it will require every student and employee to get the Daily Pass, which school officials said will coordinate health checks, COVID tests and vaccinations. Data collected will be reported to public health authorities and other LAUSD healthcare collaborators.
According to the employees’ lawsuit, the process for developing a vaccine normally takes place over a period of years with many different stages of testing, as it may take years for the side effects of a new vaccine to manifest themselves. “No one knows the short, medium or long-term effects of this medical intervention over 1, 5, 10 or 50 years,” HFDF said.
By mandating experimental COVID vaccines, LAUSD is “forcing employees to choose between providing for their families and being the victim of human experimentation,” said HFDF. “Forced vaccination is not only unethical, it violates the tenets fundamental to a free society and must stop.”
In December 2020, Children’s Health Defense published “Vaccine Mandates: An Erosion of Civil Rights?” which examines the history and consequences of vaccine mandates, and what you can do to protect yourself and your family members. The Vaccine Mandates e-book can be downloaded here.
https://childrenshealthdefense.org/defender/teachers-sue-la-school-district-covid-vaccine/?utm_source=salsa&eType=EmailBlastContent&eId=8b7532c2-59f9-4a22-8058-653a2787f7b8
Exclusive: Care home staff to face compulsory Covid vaccination
Leaked Cabinet plans reveal that Prime Minister and Health Secretary have agreed to make jabs a legal requirement
By Ben Riley-Smith, Political Editor 22 March 2021 • 10:00pm
Leaked details of a paper submitted to the Covid-19 Operations Cabinet sub-committee last week show that Boris Johnson and Matt Hancock have requested the change in law
Leaked details of a paper submitted to the Covid-19 Operations Cabinet sub-committee last week show that Boris Johnson and Matt Hancock have requested the change in law
Care home workers will be required by law to have a Covid-19 jab under a historic legal change agreed by Boris Johnson and Matt Hancock, The Telegraph can reveal.
Leaked details of a paper submitted to the Covid-19 Operations Cabinet sub-committee last week show that the Prime Minister and Health Secretary have requested the change in law.
Ministers feel compelled to act amid alarm at the low take-up of vaccines among staff in care homes, where many of those most at risk from the virus live.
Only around a quarter of homes in London, and half in other parts of England, have reached the level of vaccination among staff and residents deemed safe by government scientists.
If the law change is voted through, it is likely that the vast majority of the 1.5 million people who work in England’s adult social care sector would be legally bound to have a Covid vaccination.
The decision, in principle, is without modern precedent. One legal expert said the only comparable UK laws dated from the 1800s, when newborns had to be given smallpox jabs.
Legally forcing scores of workers to get a jab raises huge legal and moral questions. Ministers have previously called similar ideas “discriminatory”.
The Cabinet sub-committee paper warns that a “large” number of social care workers may quit if the change is made, and that successful lawsuits on human rights grounds could be possible. It makes clear that a similar legal requirement is being considered for some frontline healthcare workers, such as those on wards, but no decision on that has been taken.
The document, drafted by the Department of Health and Social Care, is about 15 pages long and entitled “Vaccination as a condition of deployment in adult social care and health settings”.
Its key line is understood to read: “The Prime Minister and the Secretary of State [Mr Hancock] have discussed on several occasions the progress that is being made to vaccinate social care workers against Covid-19 and have agreed – in order to reach a position of much greater safety for care recipients – to put in place legislation to require vaccinations among the workforce.”
The sentence makes it clear that both have decided in principle to change the law to require the vaccination of social care workers, even as the specifics are worked up. Government officials are discussing what the legislation would look like, with consultation on a final detailed proposal expected.
The legal change would be likely to affect England only, with health policy the remit of the devolved administrations in Scotland, Wales and Northern Ireland.
Care homes have been among the sectors hit hardest by the Covid pandemic. In the last year, around one in 14 of the population of UK care homes has died after contracting the virus.
The paper, described to The Telegraph in detail by numerous sources, outlines the scale of the problem of Covid vaccine take-up among care home workers which has led ministers to act.
It says the Scientific Advisory Group for Emergencies (Sage) set a benchmark of 80 per cent vaccination among staff and 90 per among residents for a care home to be deemed safe. Fewer than a quarter of homes in London currently meet that benchmark, according to the document – the lowest of any region in England. Even in better performing areas, such as the South-West, it is only around half.
Care homes have a relatively high proportion of black, Asian and minority ethnic workers. Vaccine take-up has been lower in BAME communities, according to government data.
Many care home workers are young, meaning they may not yet have had a Covid vaccine, and the paper says other possible factors include concerns over having the jab while pregnant and online misinformation about the vaccine.
A senior government source justified the move by saying: “Protecting the most vulnerable in our society from a deadly virus is obviously of critical importance.”
However, the legal and ethical questions posed are likely to be strongly debated in the coming months.
A key line in the paper is understood to read: “The most significant risk of a policy to require vaccination among the workforce is the potential impact on workforce numbers should social care workers choose to leave their roles in large numbers rather than be vaccinated.”
There are also legal risks. The document weighs up the respective merits of making the legal change via primary legislation or secondary legislation, which is quicker to pass. It is understood to warn that there would be a “high risk” of successful legal challenges on human rights and proportionality grounds if the change was made by secondary legislation.
Nadhim Zahawi, the vaccines minister, has previously said Covid vaccine “passports”, revealing people’s jab status, would be “discriminatory”. In the same BBC interview, given last month, Mr Zahawi said of the idea of mandating people to get Covid jabs: “That’s not how we do things. We do them by consent.”
A Cabinet Office spokesman said: “The review into Covid status certification is considering a range of issues. No final decisions have been made.”
David Sheppard, a senior associate in Capital Law’s employment and immigration team, which advises employers on Covid vaccination policies at work, said no similar law had been passed in more than a century.
Mr Sheppard said the closest equivalent was the 1853 Vaccination Act, which introduced compulsory vaccination for smallpox for newborn babies, and Acts passed in 1861, 1867 and 1871 to enforce that rule with fines.
https://www.telegraph.co.uk/politics/2021/03/22/care-home-staff-face-compulsory-covid-vaccination/
Fantastic advice,thankyou to good sensible and honest people giving help to us,invaluable,😀😀😀
Can you tell me if there is *any* chance someone will take a European country to court, since I am effectively banned from travelling outside the UK unless I am ‘double-jabbed’?