Singapore, High Court (General Division), 16 June 2022, No. SGHC 141
Case overview
Country
Case ID
Decision date
Deciding body (English)
Type of body
Type of Court (material scope)
Type of jurisdiction
Type of Court (territorial scope)
Instance
Area
Further areas addressed
- Healthcare management (Covid related, excluding vaccination)
- Non-discrimination
Vulnerability groups
Outcome of the decision
Link to the full text of the decision
General Summary
The Applicants sought leave to seek various quashing orders and declarations (See section on “Measures, Actions, Remedies Claimed” below.) on grounds of illegality, irrationality, and discrimination under Article 12(1) of the Singapore Constitution (the “Constitution”) (at [44]) against the following –
(a) a ‘directive’ by the Multi-Ministry Task Force (“MTF”) and the Ministry of Manpower dated 23 October 2021 that stated “from 1 January 2022, employers may terminate the employment of employees who are not vaccinated” (“Advisory”);
(b) and a ‘directive’ by the MTF and the Ministry of Health (“MOH”) dated 8 November 2021 that stated “from 8 December 2021, Covid-19 ... patients who are unvaccinated by choice, will have to bear the full medical costs of their treatment” (“Policy”).
For the Singapore Court to grant leave, the following elements must be satisfied (at [46]) –
- The ‘directives’ must be susceptible to judicial review;
- The Applicants must have sufficient interest in the ‘directives’; and
- There must be a prima facie case of reasonable suspicion in favour of granting the quashing orders.
The Applicants’ prayer for leave to judicially review the Advisory was dismissed because it was held to not be susceptible to judicial review (at [56] – [61]).
The Applicants’ prayer for leave to judicially review the Policy was dismissed because:
- Element (1) was satisfied only in respect of the Policy (at [55] and [61]).
- Element (2) was satisfied since the Applicants were unvaccinated (at [64]).
- Element (3) was not satisfied since (i) the factual bases for the Policy was not incorrect; (ii) the reasons for the Policy did not fall foul of illegality or irrationality; (iii) the Policy was neither illegal nor irrational; and (iv) the Policy did not breach Article 12(1) of the Constitution.
The Applicants were also not entitled to seek a declaration that they had the following substantive legitimate expectations (“SLE”) (at [183]): that regardless of vaccination status –
- Their employment status or chances of finding employment would not be affected; and
- Their medical bills would be borne by the Government if they fall ill with COVID-19.
Facts of the case
In response to the Covid-19 pandemic, the MTF was established to, inter alia, to direct the Singapore Government’s response to the Covid-19 outbreak and coordinate the community response to protect Singaporeans (at [2]).
On 8 Nov 2021, the MTF and MOH announced that Covid-19 patients who were unvaccinated by choice would be charged for their Covid-19 medical bills from 8 December 2021. This was a return to the Government’s default position (in respect of those who were unvaccinated by choice) that patients who receive medical treatment in Singapore are expected to be responsible for their own medical bills (at [5]).
On 23 Oct 2021, the Ministry of Manpower, the Singapore National Employers Federation and the National Trade Unions Congress issued the ‘Updated Advisory on COVID-19 Vaccination at the Workplace’ to provide guidance to employers and employees on work arrangements and on how employers could manage their unvaccinated employees who could not be physically present at the workplace under the Workforce Vaccination Measures (at [2]). Paragraph 7(c) of the Advisory stated that employers could “as a last resort, terminate [unvaccinated employees’] employment (with notice) in accordance with the employment contract” and such termination of employment “would not be considered as wrongful dismissal” (at [9]). This was aligned with the vaccination-differentiated safe management measures implemented in the broader social and community context (at [11]).
Type of measure challenged
Measures, actions, remedies claimed
- Leave to apply for quashing orders to quash the ‘directives’ stated above;
- Declarations that the alleged directives are “unlawful and/or irrational”; and
- A declaration that the Applicants had the substantial legitimate expectations stated above.
Individual / collective enforcement
Nature of the parties
Claimant(s)
Private collectiveDefendant(s)
Public
Type of procedure
Reasoning of the deciding body
(1) Only the Policy was susceptible to judicial review.
The Policy was undertaken pursuant to statutorily conferred powers and was public in nature (it concerned Singapore’s healthcare financing framework) (at [55]) while the Advisory had no legal effect (at [58]) – it “[did] not compel or mandate employers” to terminate the employment of unvaccinated employees (at [60]).
(2) The Applicants had sufficient interest to challenge the Policy.
The Applicants had stated unequivocally and maintained in their written submissions that they were unvaccinated against Covid-19 (at [64]).
(3) There was no prima facie case of reasonable suspicion.
i) Factual basis of the Policy
The Applicants had contended that the Policy was grounded in incorrect factual bases, specifically that (1) a fully vaccinated person would be less probable to die or suffer serious adverse health consequences due to Covid-19 (at [73]) and (2) unvaccinated persons made up a sizeable majority of those who required intensive inpatient care, and disproportionately contributed to the strain on healthcare resources (at [76]).
The High Court cautioned that such scientific questions were “generally not amenable to judicial resolution” (at [73]). Even if the aforementioned factual bases were incongruent with the statistics, the incongruence alone was insufficient to show that the contrary proposition was true (at [74]). The High Court nevertheless examined the figures computed by the Applicants and concluded that (1) the Applicants had incorrectly assumed that the entire non-fully vaccinated population was equivalent to the eligible non-fully vaccinated population (at [85] – [88]); (2) the Applicants’ figures were incorrect (at [89] – [92]); and (3) they did not convincingly undermine the Policy (at [93] – [102]).
The High Court similarly concluded that the statistics cited by the Applicants to assert that there was no non-fully vaccinated person in intensive care aged 70 and above on 10 Apr 2022, did not support the Applicants’ position (at [104] – [114]).
Ultimately, the statistics did not show that the Policy was a decision so illogical that no reasonable decision-maker could have arrived at it, or that the MTF and MOH considered any irrelevant considerations or failed to consider any relevant considerations (at [115] – [117]).
ii) Reasons underlying the Policy
The High Court found that MTF and MOH had acted in good faith by relying on proper reasons which had been backed by objective evidence, and did not fail to consider relevant considerations or take into account any irrelevant considerations (at [125]).
iii) The Policy itself
For the reasons above, the Policy itself was neither illegal nor irrational. Further, it would be improper for the High Court to undertake a substantive review of the merits of the Policy, which should be undertaken by the executive (at [132]), especially considering the necessity of the executive’s discretionary powers and expertise in formulating measures to combat a public health emergency (at [140]).
(4) SLE claims
The Applicants’ SLE claims were rejected because the Government had not made the alleged representations. Even if it did, the nature of the resulting consequences was insufficiently grave and severe. Lastly, the executive’s position militated against granting the SLE claims (at [183]).
Conclusions of the deciding body
The application was dismissed.
Fundamental Right(s) involved
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health (public) v. access to health services
General principle applied
- Equality
- Non-discrimination
- Reasonableness
- Separation of powers
Balancing techniques and principles (proportionality, reasonableness, others)
The test for whether the Policy constituted unlawful discrimination under Article 12 of the Constitution had two limbs (at [146]):
- Whether the persons in question could be said to be equally situated such that any differential treatment required justification – this involved identifying the purported criterion for the differential treatment in question; and
- Whether the differential treatment was reasonable in that it was based on legitimate reasons, in the sense that it bore a sufficient rational relation to the object for which the power was conferred.
The High Court held that the Applicants’ case failed at the first limb because there were at least three material differences between the Applicants and fully vaccinated Singapore Citizens / Permanent Residents. The Applicants could not be said to be equally situated with the fully vaccinated Singapore Citizens/Permanent Residents (at [149]). These differences were (at [150]):
- the Applicants’ elevated inherent risks of COVID-19 related illness and death;
- their heightened possibility of COVID-19 infection and transmission; and
- the greater degree of burden placed on the healthcare system.
The High Court cited MOH statistics and clinical studies to support its finding of the above differences ([151] – [163]).
