LexisNexis

Mandatory vaccination: legal, justified, effective?

Anne McMillanFriday 19 March 2021

Vaccine programmes being rolled out around the world have provided hope for many, but are causing concern and opposition among others. Global Insight assesses how governments and medical authorities should respond and whether compulsory vaccination is the answer.

Vaccination against Covid-19 is seen as a route back to normality, an escape from the current restrictions which mean we can’t shake hands, hug loved ones or travel freely. For some people, vaccination promises release from the fear the virus may strike them, a relative or a friend, hope of reinvigorating a moribund livelihood or resuming a child’s disrupted education.

But, while millions wait anxiously, counting the weeks or months (probably years in some low-income countries) until they reach the priority vaccine group, others fear that their refusal to accept a vaccine against Covid-19, regardless of the reason, will isolate them by labelling them unsafe to be around, and may even affect their ability to earn a living.

The controversy over vaccines is nothing new. When Edward Jenner created the first vaccination against smallpox in 1796, it was initially seen as miraculous solution to a disease which was killing millions worldwide. But it wasn’t long before his vaccination began to attract opponents and when smallpox vaccination was made compulsory in the UK by the Vaccination Act of 1853, the legislation only served to increase resistance.

By the late 19th century there was strong anti-vaccination sentiment in parts of Britain. Anti-vaccination leagues were formed and thousands took to the streets to demonstrate against what they saw as an invasive practice. Objections included religious or health concerns, along with the recurring theme of the trampling of individual rights, which resonate in the cries of present-day vaccine objectors. The scale of anger led to the legislation being amended in 1898 to allow for ‘conscientious objection’ to receiving a vaccine.

Now, with the Covid-19 pandemic, the issue has come to a head again and not just in Britain. Around the world the controversy over vaccines seems as fresh today as it was when Jenner first discovered his answer to smallpox. Two centuries later, similar objections are being raised by vaccine sceptics and opponents, some of which merit a hearing. ‘There is a need to recognise that beyond general vaccine sceptics and/or those simply buying into the latest conspiracy theory expounded on social media, many people may hold genuine fears and anxieties about vaccination in general (or relating to specific vaccines),’ says Barbara Connolly QC, member of the IBA’s Family Law Committee Advisory Board.

Beyond general vaccine sceptics and those simply buying into the latest conspiracy theory… many people may hold genuine fears and anxieties about vaccination

Barbara Connolly QC
IBA Family Law Committee Advisory Board

So, what have we learnt since the 19th century? Do arguments for and against vaccination still hold? And if so, how can, and should, governments and medical authorities respond? Perhaps most important, is mandatory vaccination legal and justified from a human rights perspective, or effective given this new threat to public health?

Vaccination fears

What is it about vaccines, one of the most simple and successful medical interventions ever, that attracts so much controversy? One characteristic of vaccination is that it is preventative rather than curative and so is generally rolled out on a widespread scale, thus magnifying any potential risk. As the President of the European Commission, Ursula von der Leyen (a qualified physician), said when justifying the comparatively longer time it took for the European Union to declare early Covid vaccines safe: ‘A vaccine is the injection of an active biological substance into a healthy body. We are talking about mass vaccination here, it is a gigantic responsibility.’

The problem of how to overcome vaccine fear is compounded by obscure areas in scientific and medical research. There may have been great advances in research since the 19th century, but even so, results are not always clear or complete. This can lead to genuine concerns about possible ill effects and the waters are further muddied by extremist pseudo-scientific or sometimes demonstrably fake claims (such as that the Covid vaccines are being used to implant microchips in people’s bodies).

Such concerns are undoubtedly exacerbated when insufficient information is given by governments regarding the potentially, if comparatively rare, adverse effects of vaccines. Robert Krakow, a US attorney who has represented many clients claiming injury by vaccines, suggests that extremist claims gain more traction precisely because governments are not fully transparent and thus lose public trust. ‘The government effort to hide the existence of vaccine risk (by choosing to not acknowledge vaccine injuries) only sows greater distrust than if the government were more honest about the risks,’ he says. ‘I do think the rise in the number of people willing to believe in such theories and act on them is directly attributable to the government’s duplicity, engendering extreme distrust.’

One fear is that providing full disclosure of all known risks (including rare ones) may in itself provoke resistance to vaccines. Likewise, admitting areas where information is lacking, such as that the long-term effects of Covid vaccines are unknown, may have the same effect. Nevertheless, in the view of Markus Beham, European Regional Forum Liaison Officer of the IBA’s Human Rights Law Committee, there is no option. ‘States should, generally, provide information transparently, as opposed to patronising their citizens through decision-making in a black box,’ he says. ‘From a political perspective, such an approach might simply feed conspiracy theorists and results in reduced compliance with governmental measures. From a legal perspective, there may even be an obligation resulting from the duty to protect the right to life and bodily integrity.’

Trust in the authorities, both political and scientific, is clearly a key factor in vaccine refusal. When trust is lost its effects can be long-lasting. For example, before the fall of communism, mandatory vaccination in countries within the Soviet sphere of influence fuelled mistrust of intrusive government. The legacy of this mistrust is even now thought to be contributing to hesitancy about Covid vaccines in some former communist countries.

Crucial vaccines can also become pawns in international politics. While trying to locate and assassinate Osama Bin Laden, the Central Intelligence Agency was associated with a fake vaccination programme in Pakistan, using a local doctor as cover. As a result, Taliban propaganda alleging that vaccination was a plot to kill or sterilise Muslims gained more credence and vaccinators faced threats and attacks. According to the World Health Organization (WHO), Afghanistan and Pakistan are two of only three countries in the world where polio remains endemic.

Should it be mandatory?

Thus, the challenge for governments and legislators is immense: how to devise an effective response to an ever-evolving threat which is taking the lives of citizens and undermining the economic and social fabric of nations. A vaccine offers the obvious solution, but should it be mandatory?

The legal position on mandating vaccination for certain activities, both public and private, varies widely between countries. A study published last year in Vaccine, entitled ‘Global assessment of national mandatory vaccination policies and consequences of non-compliance’, examined this issue in 193 countries. The study found that over 100 countries have some kind of nationwide mandatory vaccination policy. Of those, 62 states impose one or more penalties for non-compliance, mostly financial or educational (such as refusing school enrolment).

Several countries have vaccination policies which could viewed as ‘mandatory’ to the extent that children without certain vaccines cannot attend school and/or their parents face fines or even imprisonment. But the principle of informed consent to medical procedures (sometimes required to be in writing) comes under severe strain when parents are ‘encouraged’ to vaccinate children under threat of such measures.

Officially the Australian government has said that it will not make Covid-19 vaccination mandatory, but Alison Choy Flannigan, Publication and Newsletter Editor of the IBA’s Healthcare and Life Sciences Law Committee, says it is likely that ‘the vaccine will be made a condition of access to some government services’. Australia has taken a strong line in the past with its ‘no jab, no pay’ policies, blocking the right to certain tax reliefs for parents who refuse to vaccinate their children.

In Brazil, the Supreme Court has already ruled that it is legal for local governments to make Covid vaccination mandatory, while specifying citizens cannot be physically forced to have the vaccine. However, certain restrictions of the rights of vaccine refusers are envisaged, such as being disallowed a state benefit or refused school enrolment, not to mention being denied access to public transport or restaurants.

In the UK, the current policy is against any form of coercion. Yet, at the time of writing, one third of care home staff have declined a Covid vaccination. Thus, arises the difficult question of whether the right to bodily integrity can, or should, continue to prevail despite the risks to others, in this case the clinically vulnerable elderly? Could alternatives to vaccination, like frequent testing and the wearing of protective clothing, fill the gap? Is it only a matter of time before we see legal action if someone dies as a result of contracting Covid-19 from an unvaccinated staff member or official?

From just these few examples, it is apparent that national laws are inconsistent, with governments still grappling with complex, competing issues. And, as Connolly points out, punitive measures may do little to ‘overcome the crucial issue’. ‘How do you ensure enforcement? If the message is vaccination saves lives, including potentially your own or those of loved ones, there are perhaps better ways of getting that message across and ensuring take up.’ As the situation evolves, measures by countries restricting the rights of the unvaccinated seem likely to continue and it is perhaps inevitable that some of these will be challenged in the courts.

Trailblazers

In the meantime, as governments struggle with the mandate versus persuasion conundrum, private entities are making their own vaccination rules. Should that be possible? In many countries, such as Australia, national law provides for relative freedom of action. ‘Private companies can choose who they provide services to and who can enter their premises as conditions of entry’, says Choy. ‘The terms of the contract must be made known prior to entering into the contract and the conditions of entry must be displayed. The same does not necessarily apply to some public services, for example emergency departments in public hospitals.’

Krakow thinks it may also be politically convenient for governments to allow private entities to be the trailblazers. Allowing private businesses to introduce requirements to prove vaccination against Covid-19 takes governments out of the firing line for controversial decisions. ‘Because government officials understand that there is a judicial trend countering mandates and, perhaps more importantly, that mandates breed resistance and increase the already intense public distrust of government and vaccines, they are “punting” the issue to private entities,’ he says.

But governments may face challenges to such a hands-off approach. ‘States, as holders of governmental authority and as “regulatory states” as they appear today, cannot simply lean back and claim that an issue is outside of their reach, particularly in the area of health and safety regulations which are traditionally considered an essential area of states’ right to regulate,’ says Beham. ‘Whenever courts look at commercial relations between private individuals, they will also have to apply the law in conformity with fundamental rights, leading to an indirect effect of non-discrimination and other rights.’

If vaccines are so important and their risk so outweighed by their benefit, then the government should rely on that argument and persuade people to get vaccines

Robert Krakow
US vaccine injury lawyer

Although vastly differing opinions are being floated in various countries as to the legality of private entities mandating vaccinations for employees and clients, this has not stopped some private enterprises taking action. A handful of cruise ship companies are already restricting their holidays to those who have Covid vaccinations and one UK company, Pimlico Plumbers, has included a requirement for such vaccination in new contracts for its employees. Complicating matters further, the distinction between private and public areas of control is sometimes blurred. For instance, in some states vital infrastructure (such as railways) is run by private companies. Can or should those companies be able to mandate vaccination for their employees or customers in such circumstances?

This two-track approach risks creating inconsistent or discriminatory consequences: for example, a person working in a private hospital may be obliged to obtain a Covid vaccination, but an employee in a state hospital may not be under the same obligation. If a government has no legal power to mandate vaccination, it might seem bizarre that private entities are able to do so. Nadim Zahawi, the UK minister who is taking the lead on the government’s vaccine response, says ‘it’s up to businesses what they do’.

But is it? Beham says this comes down to balancing rights and emphasises again that in certain areas the government has an overarching role. ‘Government can and should regulate such requirements when it comes to the use of critical infrastructure necessary for the exercise of fundamental rights,’ he says. ‘Where private actors are entrusted with such functions, their freedoms will have to be weighed with other fundamental rights and restricted accordingly. It is conceivable that international human rights bodies will find that states have failed to fulfil their duty to protect fundamental rights by going beyond their domestic margin of appreciation.’

So perhaps there is more of a legal obligation on governments than they currently seem willing to acknowledge.

Passport to freedom

In resolving the dilemma, much may hinge on what is understood by ‘mandatory’. The interpretation probably depends on who is asked and in which country. No state seems to be suggesting it will physically restrain citizens and force needles into their arms. But, as already noted, some governments (as distinct from private businesses) have begun to allow or to introduce certain privileges for the vaccinated—and exclusions for the unvaccinated.

Many people sceptical of vaccination in general, as well as those hesitant to receive a Covid vaccine in particular, have taken to social media to express views that while vaccination may not strictly be mandatory, the suggested inducement or coercion of citizens who are hesitant to receive the vaccine amounts to the same thing. There is no doubt that certain measures give the individual little choice if they want to resume life as it was before the pandemic.

Even within governments there is disagreement. German Interior Minister, Horst Seehofer, told the Bild am Sonntag newspaper that ‘As important as vaccination is for all of us: no special treatment for the vaccinated! Distinguishing between the vaccinated and the not-vaccinated would be the same as a mandatory vaccination.’ The German Foreign Minister, Heiko Maas disagrees, saying ‘vaccinated people should be able to exercise their rights again’.

Israel, which has vaccinated more of its citizens against Covid-19 than any other country in the world thus far, agrees with the latter view and has already begun to privilege the vaccinated. Those who can prove they have been vaccinated are allowed access to gyms, hotels, concerts and restaurants. In addition, the government has struck a deal with Cyprus and Greece to allow free travel between the countries for those with a so-called ‘green pass’ from April. Many countries now seem to be flirting with the idea of vaccination ‘passports’ or ‘certificates’, despite earlier protestations of non-coercive approaches to vaccination and concerns about medical confidentiality laws.

The Swiss government initially mooted the possibility of mandating Covid vaccinations for health workers, but this was met with a flurry of objections. In February, according to the Swiss Broadcasting Corporation, the National Advisory Commission on Biomedical Ethics firmly rejected such an approach. ‘To prescribe such self-protection for specific groups would be paternalistic and unjustifiable [...] it’s imperative to ensure that the fundamental rights of all people are safeguarded, that potential inequalities of treatment are minimised.’

Foreshadowing the legal issues likely to arise, the Commission pointed out that no ‘vaccination certificate’ could be contemplated unless Covid vaccines are proved to guarantee protection against transmission and are accessible to all. Even this statement raises issues of interpretation: must vaccination be free to be judged accessible? Does ‘all’ include people beyond Swiss borders?

Human rights in the time of Covid-19

Can international human rights law provide some answers? Possibly, since mandating vaccinations for Covid-19 raises many complex questions concerning the interplay of competing rights. Central to these is where the line should be drawn between a government’s duty to protect the health and safety of the population and the individual’s right to bodily integrity, particularly when a worldwide pandemic is causing millions of deaths and economic devastation.

Those wishing to refuse a compulsory vaccination frequently rely upon Article 8 of the European Convention on Human Rights, which protects the right to respect for private and family life (a right protected by similar provisions in other international and regional instruments). However, this is a qualified right and its exercise is subject to limitations. There can be no interference with this right unless it is ‘in accordance with law’, is ‘necessary in a democratic society’ and is for the ‘protection of health […] or rights and freedoms of others’.

Should a government make the vaccine mandatory, then there should be some compensation to patients who suffer injury arising from manufacturing defects

Alison Choy Flannigan
Publication and Newsletter Editor, IBA Healthcare and Life Sciences Law Committee

According to the European Court of Human Rights, the action taken has to be ‘proportionate’, which involves proving that a given individual poses a significant risk to the public. As a disease, Covid-19 has distinguishing characteristics, so far as they are known. The range of its severity, from asymptomatic to life-threatening, its varying threat to different age groups and its evolving variants are likely to be relevant to any argument in favour of mandating a vaccination.

Many previous vaccines which have been the subject of mandatory vaccination programmes have been aimed at children. Yet, when it comes to Covid-19, children as a group appear to be less prone to infection or suffer mild or asymptomatic versions. In these circumstances, the risk of ill effects from the vaccine, even if remote, would arguably be less justified if the aim is to protect children.

On the other hand, an argument for either recommending, or insisting, on the Covid vaccine for children, may be that they may spread infection to other more vulnerable groups. Connolly invokes a core principle from the United Nations Convention on the Rights of the Child, the ‘best interests of the child’, when questioning whether this would be valid. ‘The current scientific evidence suggests that children are rarely at significant risk of serious ill health/death in the event of contracting the coronavirus, even if they develop symptoms,’ she says. ‘In those circumstances what is the purpose of vaccination? Is it for the benefit of the child, or the public at large? The evidence would suggest the latter. Thus, it may be highly desirable for children to be vaccinated, but is it necessary or in their best interests?’

When evaluating the ‘necessary’ element to obligatory vaccination, the lack of available effective alternatives, such as quarantine or testing, would also have to be established. Ultimately, this is an exercise in balancing competing rights, not just of children but all citizens. ‘The right to life and, with it, to bodily integrity may not be absolute but it is an individual, not a group right,’ says Beham. ‘The state has both a duty to respect, to protect and to fulfil this right to life. In considering these, the state has to balance them against each other proportionately. The absolute threshold in any such balancing exercise is the element of human dignity.’

So, to what extent should governments persuade citizens instead of coercing them, directly or indirectly? Krakow has encapsulated the quandary facing legislators: ‘My view is that if vaccines are so important and their risk so outweighed by their benefit, then the government should rely on that argument and persuade people to get vaccines.’ But fragmentary information from governments, the existence of grey areas of medical uncertainty about Covid vaccines, and resistance to the ‘coercive’ tactics of limiting the fundamental rights of the unvaccinated, undermine the effectiveness of persuasion.

Another element diminishing confidence is the fact that several major Western countries have exempted manufacturers from liability in the rare case where a person may suffer serious illness or injury as a result of the Covid vaccine. Government-created ‘no fault’ compensation programmes, which ostensibly replace the legal right of an individual to sue privately, have historically put limits both on qualifying injuries and financial compensation. Such monetary limits frequently fall well below comparable compensation if drug companies were found to be liable in the courts.

An overview of compensation schemes for vaccine injury is beyond the scope of this article, but this is clearly also an important factor when building trust in any form of vaccination, especially if it is obligatory. ‘Should a government make the vaccine mandatory, then there should be some compensation to patients who suffer injury arising from manufacturing defects,’ says Choy.

If persuasion to receive vaccines fails to achieve a safe level of public immunity, what then? This question, with others equally challenging for governments around the globe, constitutes a Gordian Knot in which the strands of law and ethics are tightly intertwined. We are likely to have clearer answers to such questions in future, as vaccination against Covid-19 is expanded worldwide. Will the economic and practical benefits of privileging the vaccinated eventually become irresistible to governments and businesses alike?

The answer to this question is likely to be tested in both national and international courts in the years to come.

Anne McMillan is a freelance journalist. She can be contacted at basestation2011@gmail.com