Is compulsory vaccination the next step for Covid-19? Would you be first in line for the Covid-19 vaccine? Or would you prefer to wait and appraise its effects on those who have received the vaccine?
With more than a year of widespread media coverage of the coronavirus, it would not be surprising if a large percentage of an already fearful population exercised its right not to be subjected to what would be against the law: medical treatment without consent.
This is a syndrome, and it has a name. It is called “vaccine hesitancy.” The World Health Organization (WHO) describes this as “the reluctance or refusal to vaccinate despite the availability of vaccines.” Our willingness to avail ourselves of a future COVID vaccine is very much in doubt, and it is in doubt in high places.
Should a Covid-19 vaccine become available at scale, we cannot expect sufficient voluntary uptake.
On November 17 the Danish government finished considering a new law giving the government extended powers to respond to epidemics. Parts of this law propose that people infected with dangerous diseases can be forcibly given a medical examination, hospitalized, treated and placed in isolation.
The Danish Health Authority would be able to define groups of people who must be vaccinated in order to contain and eliminate a dangerous disease. People who refuse can – in some situations – be physically detained, with police allowed to assist. Other countries have taken an approach “to watch what happens.”
In July 2020, a group of philosophy and law academics presented written evidence to the parliament of Mexico proposing that individuals should undergo vaccination as a condition of release from pandemic-related restrictions on liberty, including on movement and association.
The authors of the report base this proposal on two parity arguments:
1. If Covid-19 lockdown measures are compatible with human rights law, then it is arguable that compulsory vaccination is too (lockdown parity argument).
2. If compulsory medical treatment under mental health law for personal and public protection purposes is compatible with human rights law, then it is arguable that compulsory vaccination is too (mental health parity argument).
They contend that there is an arguable case for the compatibility of compulsory vaccination with human rights law.
It suffices to say that, at the moment anyway, there is no legal basis for a mandated vaccination program in any jurisdiction. The current guidelines can be found within the U.S. Centers for Disease Control (CDC), which sets out the list of responsibilities patients have and recommends participation in important public health programs, such as vaccination.
This, and all other listed obligations, are not legally enforceable. Even for infants and small children, vaccinations have not been compulsory since the turn of the 20th century, although societal pressures ensure that most parents comply since admission to state run nurseries and primary schools are contingent on a full vaccination record. But the decision on vaccination lies within the zone of parental discretion.
Section 3 of the United Kingdom’s Mental Health Act of 1983 permits the detention of an individual in a hospital for treatment if they do not have capacity to give informed consent under the Mental Capacity Act of 2005. This means that the 1983 Act creates an exception to the common law requirement that medical treatment is only lawful with an individual’s informed consent.
Of course, a compulsory vaccination policy would interfere with the right to autonomy under the Convention of Human Rights, and arguably it would reach the threshold of degrading treatment under this Convention. Absent the conditions set out by both the Mental Health and the Mental Capacity Acts, vaccination without consent would be prohibited by the criminal law on assault, and even grievous bodily harm, if the consequences of the treatment are serious.
Even assuming an entirely safe and effective vaccination, it is something of a step to proclaim that the entire population of a country is on a par with mental health patients who have been deemed enough of a danger to themselves and others to warrant medical treatment under detention.
Compulsory interference with a person’s bodily integrity is not something that a democratic society will tolerate without detailed regulations and specialist tribunals in place. Lack of mental capacity coupled with risk to health of the individual and to the public is the only justification we have for such a draconian measure.
We have long passed the point where patients are held to be responsible for their own health. But imposing upon the population an intrusive regime to enforce individuals’ responsibility for public health is an entirely different matter.
My end point is that the imposition of vaccination is not currently permitted by law and would require an Act of Parliament.