NZTSOS Legal Challenge : Do We Have a RIGHT to Decline Medical Treatment?

First Applicant = NZDSOS (New Zealand Doctors Speaking Out with Science)

Second Applicant  = NZTSOS (New Zealand Teachers Speaking Out with Science)

First Respondent = Minister for Covid-19 Response

Second Respondent = Director-General of Health

Third Respondent = Attorney-General

NZTSOS Appeal Vaccine Mandate Decision

NZTSOS will be in the Wellington Court of Appeal next month (April 19) to challenge Justice Cooke’s finding that the covid 19 vaccine mandate (for education and health workers) was a reasonable and demonstrably justified limitation on the Section 11 Right of NZ ​​​​​​​Bill of Rights Act (BORA).  Section 11 is the FUNDAMENTAL right to refuse to undergo any medical treatment.

Although being argued in court by NZTSOS, this case is relevant to EVERY New Zealander, particularly those who value their autonomy and ability to make their own medical decisions.  What is being challenged is the process and evidence required to limit fundamental rights of citizens of this country.

Justice Cooke determined that the right to decline medical treatment was not absolute and that the Crown had satisfied the ‘very significant evidential burden’ required to prove that the mandate was a reasonable and demonstrably justified limitation of that right. 

NZTSOS and NZDSOS were disappointed with this outcome and disappointed with the whole judicial review process which did not engage in robust debate and questioning, or a thorough evaluation of the science.  Rather, Justice Cooke accepted the word of the Crown ‘experts’ (Bloomfield and Town) while effectively ignoring the evidence presented by the Applicants’ experts (who were true experts in their fields – vaccine development, epidemiology, public health, virology, cardiology).

The Applicants had significant concerns about the lack of effectiveness of the vaccines.  Without the ability of the vaccines to stop transmission the mandate was pointless and unjustified.  History has clearly shown these concerns were valid!

More importantly though, the Applicants were also concerned about the safety of the vaccine – both the known short-term safety concerns (including potentially fatal myocarditis) as well as concerns due to the total lack of long-term safety data.  They were aware of the potential for a significant number of people to be harmed by the vaccine, many of whom were at minimal risk from covid.  The expectation that education and healthcare workers would effectively play Russian roulette with their health, was neither reasonable nor justifiable in the Applicants’ eyes.

The appeal process only allows for an examination or reassessment of the legal matters in the case, not a review of the science.  This seems to be a failing of the system, because at no time in the three years of the pandemic, has the science that allowed mandated medical procedures to be visited upon the population of NZ, ever actually been openly debated.

One of the main thrusts of the appeal is that the bar, that Justice Cooke accepted, for proving that the limiting measure (i.e. the mandate) was demonstrably justified, was far too low.  Poor quality evidence, from witnesses who were not subject experts, and whom he did not allow to be cross examined, was all that he required.

In addition, by invoking the precautionary principle (which is only used in times of scientific uncertainty) in his judgement, Justice Cooke demonstrated that the measure did not have sufficient evidence to back it up.  This use of the precautionary principle as well as the fact that the vaccines only have provisional consent (which is granted when there is insufficient evidence of safety and/or effectiveness to grant full consent) should mean, to any reasonable person, that mandating them could not be demonstrably justified.

The lawfulness and reasonableness of the exemption criteria are also being challenged and are part of the appeal.

We can but hope that the 3-5 judges hearing the appeal will demonstrate that our legal system is again worthy of respect and that the courts of NZ will determine to uphold the most fundamental of our rights as NZ citizens.

If not, New Zealanders should anticipate more forced or mandated medical procedures, as the bar for proving they are demonstrably justified will be confirmed to have been set very low.

For a detailed review of the original case see here.