Would you be first in the queue for the Covid-19 vaccine if and when it is rolled out? Or would you prefer to wait and appraise its effects on more pioneering citizens? With nearly 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 an assault and battery under English law: medical treatment without consent.
This is a syndrome, and it has a name. It is called “vaccine hesitancy”. The 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.
In July 2020 a group of philosophy and law academics presented written evidence to Parliament 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”:
a. If Covid-19 ‘lockdown’ measures are compatible with human rights law, then it is
arguable that compulsory vaccination is too (lockdown parity argument);
b. 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.
The debate over the legality or otherwise of the lockdown measures under the Public Health (Control of Disease) Act 1984 and the Coronavirus Act 202 has been covered in detail on the UKHRB, here, here , here and in numerous other posts. It suffices to say that, at the moment anyway, there is no legal basis for a mandated vaccination programme in English law. The current guidelines can be found within the NHS Constitution which sets out the list of responsibilities patients have in order to avail ourselves of their services, including a plea
[to] participate in important public health programmes such as vaccination.
This, and all other listed obligations, are not legally enforceable. Even for infants and small children vaccinations have not even been compulsory since the turn of the twentieth century, although societal pressures keep most parents compliant, 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 (Re C (Welfare of Child: Immunisation)[2003] EWCA Civ 1148).
The authors of the report refer to Section 3 of the Mental Health Act 1983. This permits for the detention of an individual in hospital for treatment if they do not have capacity to give informed consent under the Mental Capacity Act 2005. Put shortly, 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 Article 8 of the European Convention of Human Rights, and arguably it would reach the threshold of degrading treatment under Article 3. The authors of the report engage at length with Article 8 and its clawback derogations. But these ECHR arguments lie much further down the road. 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 proclaiming 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.
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