The government is introducing a vaccine mandate which will cover much of the work force. There’s a hole: an unclear provision for exemptions is probably wider in scope that the Ministry of Health seems to think.

Public health experts have been saying that the group of people for whom vaccination is clinically contraindicated is tiny. When you weigh the risk of going unvaccinated against the risk of vaccination, for almost everyone vaccination is the safer option even with the possibility of adverse consequences. There’s almost no one that can’t get the vaccine.

 Here’s what the Ministry of Health says about the medical exemption from the vaccine mandate for workers:

Workers may be exempt from the requirement to be vaccinated if, after examination:

·       a suitably qualified health practitioner considers that the vaccination is clinically contradicted for the person, and

·       a suitably qualified health practitioner provides written confirmation of that assessment.

 The Ministry gets it right that exemption requires an assessment by “a suitably qualified health practitioner”. But the Vaccine Order doesn’t say that exemptions only may be given where vaccination is “clinically contraindicated”. What it actually says is that an exemption  exists where:

the affected person has particular physical or other needs that a suitably qualified health practitioner (in the course of examining the person) determines would make it inappropriate for the person to be vaccinated

 I’ve highlighted the three most important parts of the wording, all of which raise questions:

·      Who is a suitably qualified health practitioner?

·      What needs are “other needs” relevant to the determination?; and

·      What does it mean that vaccination is “inappropriate”?

 “Health practitioner” is defined with reference to the Health Practitioners Competence Assurance Act(HPCA), which provides for certain health professions to be regulated. “Suitably qualified” suggests that some of these professions are suitably qualified, and others not.

 Although I’m a humble academic lawyer and not a medic, I think I can safely say that podiatrists - despite being health practitioners regulated by the HPCA - are not suitably qualified to determine if vaccination is appropriate. And practitioners of medicine are in. But what about nurses, midwives, psychologists or psychotherapists, who come under the HPCA? Perhaps, perhaps not. In Victoria’s worker vaccine mandate order, only certain GPS and specialists can determine if someone is medically exempt from vaccination.

 Ultimately, who is “suitably qualified” is going to depend on what it means that vaccination is “inappropriate” because of “physical or other needs”. That will then tell us who is qualified to make the determination.

 “Physical or other needs” means we are not looking purely at physical health – mental health needs would seem to be one obvious consideration. That would make the vaccine exemption resemble the medical mask exemption for where mask wearing is unsuitable because of a “physical or mental illness or condition or disability”.

 Could “needs” go beyond health needs? Could it include, for example, religious or cultural needs? Business needs? What about the need to exercise rights under the New Zealand Bill of Rights Act such as freedom of movement or the right to refuse medical treatment? Or the right to bodily autonomy?

 Now, you might be thinking: the determination here’s being made by a suitably qualified health professional, so surely the “needs” must be health ones? There’s a lot of merit to that argument, but it’s important to note that the High Court just rejected an argument along those lines in the Bolton case.

 Bolton is about exemption from the usual requirement to attend MIQ on returning to New Zealand. Mr Bolton asked to be allowed to self-isolate at home on return to New Zealand and the authorities said no. The relevant exemption under the Isolation and Quarantine Order involves a medical officer of health considering “relevant individual and operational implications“ and whether the proposed alternative to MIQ “is able to meet the person’s particular physical or other needs”.

 The authorities argued that “physical and other needs” was limited to medical needs. Mr Bolton argued that a broader approach to “needs” could be taken, which might include the sorts needs I’ve referred to above. The High Court found that the narrow approach taken by the authorities was wrong in law, and told them to go back and make the decision again, this time taking a broader range of needs into consideration including Mr Bolton’s business need for travel, and his need to enjoy Bill of Rights Act rights.

 Even though the wording (“physical and other needs”) is the same, that doesn’t guarantee that a court would find that a similar approach applies for the vaccine exemption. But it certainly suggests that the idea that exemptions are only available where vaccination is medically contraindicated is open to challenge. And, the authorities don’t exactly have an amazing track record at actually following the letter of the law when it comes to exemptions from COVID measures.

 I think there’s a reasonable argument that the health professional ought to take into account a wide range of needs as well as health ones. That doesn’t necessarily mean that the presence of non-medical needs, or that someone is personally opposed to vaccination, automatically means that vaccination is inappropriate. But it might be that where, for health reasons, vaccination might cause mental or physical discomfort, the other needs factors might tip the balance in favour of vaccination being inappropriate, even if it might not be clinically contraindicated.

 That last paragraph brings us back to “inappropriate”, which is such a vague and vexing word. Inappropriate in what sense? With reference to what standard of appropriateness? It’s hard to say. The word is not qualified with “clinically” or “medically”, and the absence of such a qualification was a factor in Bolton. 

 It’s certainly possible to use more precise language. The arguably narrower phrase “clinically appropriate” appears in our reformed abortion legislation. Victoria’s vaccination rules refer to a person who is “unable” to have the vaccine because “due to a medical contraindication”. The exemption for the vaccine mandate for care workers in England applies if someone “for clinical reasons … should not be vaccinated”.

 Where does that leave us? The exemption from the vaccine mandate for workers is probably broader than the Ministry of Health says it is, but the language makes it difficult to be sure exactly when someone qualifies. It’s also hard to be sure which health professionals are “suitably qualified” to make an assessment. That leaves a hole in the protection that the vaccine mandate is supposed to be offering us.