AB (R on the application of) v Secretary of State for Health and Social Care

Permission for judicial review should be refused unless the proposed ground is arguable and has a realistic prospect of success. Where a ministerial decision rests on sophisticated medical, scientific or predictive assessments by highly qualified expert bodies, the court does not substitute its own view on the merits. It may intervene for an obvious error or logical flaw, but differences of expert opinion are insufficient.

A decision to offer medical treatment is not equivalent to compulsory treatment where individuals, or those responsible for them, remain free to accept or refuse it. The best interests of children must be assessed broadly, including educational and wider public-health consequences, rather than by reference only to direct clinical benefit.

The claimant, a 13-year-old child, sought permission to challenge the Secretary of State’s decision of 13 September 2021 to offer Covid-19 vaccination to all children aged 12 to 15. The claim was narrowed to irrationality and alleged interference with rights under Articles 2 and 8 of the European Convention on Human Rights.

It was argued that the Secretary of State had relied on deficient evidence, that the Chief Medical Officers had exceeded their proper function, and that the Joint Committee on Vaccination and Immunisation had unlawfully delegated its advisory role. The central issue was whether there was an arguable ground for judicial review with a realistic prospect of success.

1. Permission refused. The claimant identified no arguable ground for judicial review with a realistic prospect of success.
2. The Secretary of State was entitled to rely on the Chief Medical Officers’ recommendation, which in turn took account of advice from the Medicines and Healthcare products Regulatory Agency and the Joint Committee on Vaccination and Immunisation. The decision-maker had to consider vaccine safety and efficacy, the foreseeable consequences of vaccination, and the consequences of not offering vaccination, before making a public-interest judgment.
3. The court could not substitute its assessment of the substantial merits for that of the Secretary of State. In a case involving sophisticated medical, scientific and predictive analysis, intervention was limited to an obvious error or logical flaw. The evidence showed that the advisers had considered the relevant material, including uncertainty, caveats and the possibility of vaccine-related absences. The claimant’s disagreements with the evidence and methodology did not establish irrationality.
4. The Chief Medical Officers were properly placed, as public-health experts, to consider the broader consequences of vaccination, including educational disruption. The JCVI had not delegated its statutory function; it had advised that wider societal and educational matters could appropriately be considered by the Chief Medical Officers.
5. The human-rights ground added nothing. The decision offered vaccination but did not compel it. Gillick-competent children could decide for themselves, while parents or guardians could decide for children lacking capacity. The decision therefore did not, on the pleaded basis, constitute an interference with Articles 2 or 8.
6. The best interests of children required a broad assessment of welfare. The advisory bodies’ multifactorial consideration of efficacy, risks, benefits and educational consequences was consistent with that approach.