The strength of vaccination as a public health tool is that it both protects the individual and contributes to protection of the community by reducing the spread of disease. This is also its weakness: when individuals do not vaccinate, either because they cannot or choose not to, herd immunity – the state where enough individuals are immune to a disease to provide indirect protection by inhibiting community transmission – is weakened. Achieving very high rates of vaccination is therefore important to its success as a public health intervention. This blog post surveys the ethical and human rights considerations relevant in implementing vaccine mandates.
The Covid-19 pandemic has caused significant loss of life globally, in addition to ongoing pressures on health systems and the emerging evidence of longer-term effects of the disease. The near-miraculous development of multiple effective vaccines against Covid-19 within a year demonstrated the power of well-funded research and responsive regulatory action, building on decades of work in vaccine research. In combination with other public health measures, achieving high vaccination rates is a key part of the path out of the pandemic. As voluntary rates slow, and herd immunity remains elusive, it is tempting to look to vaccine mandates to get rates up and over the line.
What are vaccine mandates?
Vaccine mandates can encompass a range of sanction designs. Criminal penalties, such as fines and imprisonment, were a feature of nineteenth-century compulsory vaccination statutes requiring parents to have their children vaccinated against smallpox. Such laws were of variable efficacy, and fell into abeyance following the introduction of conscientious objection clauses in the late-nineteenth and early-twentieth centuries.
Modern mandates more commonly focus on specific groups through targeted incentives or penalties. Incentives, such as the now-repealed Maternity Immunisation Allowance, may not technically constitute a mandate, but can be significant enough, especially to those on lower incomes, that they operate in much the same way as a mandate. In recent years, incentive-based approaches have gradually been replaced by penalty-based approaches, such as the No Jab, No Pay and No Jab, No Play policies which restrict access to childcare and family assistance payments if children have not received the vaccinations required by the National Immunisation Program Schedule. While medical exemptions are available, these policies removed conscientious objection exemptions.
While the Australian government is always very careful to emphasise that vaccination in Australia is voluntary, the practical implications of these measures are such that childhood vaccinations are, except for the wealthy, essentially mandatory. Similarly, occupational vaccine mandates, such as certain childcare and aged care employers that require employees to be receive annual flu vaccines, are voluntary only in the sense that the choice is between vaccination and unemployment.
A return to population-wide vaccine mandates is extremely unlikely, but targeted Covid-19 mandates requiring evidence of vaccination for specific purposes, such as employment, travel or health insurance, are being seriously considered, if not already being implemented. Significantly, such mandates are going beyond previously accepted high-risk contexts, such as healthcare and aged care, and are being implemented in contexts such as a museum and a fruit processing plant on the basis of workplace health and safety considerations rather than under public health orders. This raises questions about the extent to which such mandates are ethical and lawful.
Are vaccine mandates ethical?
The public health ethics literature is broadly in agreement that mandatory vaccination policies can be justifiedin the interests of the community under certain circumstances. It is important to first be clear about the purpose of the mandate: for example, whether the aim is to eradicate the disease through universal vaccination, or merely to achieve sufficiently high vaccination coverage that only minor outbreaks are likely and the health system will not be overwhelmed. Clarity at this stage facilitates logical assessment of the mandate against its intended purpose. Considerations generally include:
- Efficacy: does the available evidence suggest that both the vaccine and the mandate are likely to be effective for the intended purpose?
- Necessity: will it prevent a concrete and serious harm?
- Proportionality: will the benefits of the intervention outweigh the burdens, and is it safe?
- Least restrictive alternative: are burdens minimised while retaining efficacy in relation to intended purpose?
- Equity: are the benefits and burdens distributed fairly?
- Public acceptability: will the population to whom the intervention will be applied find it broadly acceptable, and are there mechanisms for facilitating public feedback and procedural fairness?
Any ethical assessment of this nature will be heavily context-dependent, requiring empirical evidence relating to the disease and its transmission, the efficacy of the vaccine, and the social context. There is substantial literature supporting the importance of measures aimed at enhancing public trust and equitable access in combatting vaccine hesitancy. Barriers to vaccination are diverse, and frequently outside the control of individuals. In such cases, mandates are of little value. Further, implementation of vaccine mandates with insufficient attention paid to public trust and equity can contribute to polarisation of vaccine hesitant individuals into vaccine refusers.
Systemic thinking is to be encouraged, such that multiple strategies and their interactions are considered, rather than more narrowly considering only whether the conditions for justifying a vaccine mandate have been met.
Recent experience with Covid-19 clearly demonstrates that data relating to these variables changes over time, sometimes quite rapidly. This points to the need for highly restrictive interventions, like lockdowns and vaccine mandates, to be thought of as temporary measures, and the need for continual re-evaluation of the data underpinning ethical assessments.
How do vaccine mandates interact with human rights?
An anonymous pamphleteer in Hobart in 1888 characterised the ‘vaccination question’ as one of ‘Lymph or Liberty?’. A tendency towards this kind of dichotomous approach persists today. Considered in isolation, a vaccine mandate tends to be thought of in terms of a tension between the right to bodily autonomy (often derived from a right to respect for private and family life, as in the European Convention on Human Rights, or a right to protection from torture and cruel, inhuman or degrading treatment, as in the Victorian Charter of Human Rights) and the right to health.
Although the right to make decisions about medical treatment is foundational to our approach to health care, it is not an absolute right: it can lawfully be limited, for example, when an individual’s choice places the public at serious risk of harm, as is provided for in mental health legislation. A person who chooses not to be vaccinated against Covid-19 in the context of ongoing outbreaks could reasonably be characterised as placing others at risk, depending on the specific circumstances. Part of the problem is that some individuals cannot be vaccinated, and rely on herd immunity and other public health measures to keep them safe.
Of course, vaccine mandates do not operate in isolation, and in practice they can intersect with many other human rights, depending on the context. For instance, in Australia, achieving certain levels of vaccination at the population level has been tied to plans for easing of restrictions on liberty and freedom of movement. It is worth noting that Australia lacks comprehensive rights protections at the national level – such as a Bill or Charter of Rights – although some states have implemented human rights legislation. This situation arguably limits the extent to which human rights are considered in legal challenges to vaccination mandates in this country.
Arguments might also be advanced for the impact of mandates on the right to work, right to education, or whether mandates are discriminatory, and such debates highlight the importance of considering whether alternatives for those who cannot or choose not to be vaccinated – such as alternative duties, use of personal protective equipment and rapid testing, and/or selective exclusion during periods of high risk or current outbreaks – might be appropriate.
Legal scrutiny of vaccine mandates can occur in a variety of ways, depending on how it is implemented, such as human rights compatibility assessments, or legal challenges under employment, discrimination, administrative or international human rights law. In balancing these sometimes competing rights, assessments of interventions will generally employ similar tests to those proposed by public health ethicists: they will look to the purpose of the mandate, and whether a mandate is a necessary and proportionate means of achieving that purpose.
To a significant extent, these questions rely on empirical data for sensible answers, and courts are not necessarily well placed to engage critically with arguments based on complex epidemiological models, or their assumptions. Further, any judgment is of necessity a point-in-time decision, limiting the ability to respond to changing risk profiles. Cases to date, from Victoria to the European Court of Human Rights, have tended not to consider broader issues of access and equity, and reflect a willingness on the part of courts to defer to medical expertise to an extent that fetters the ability of the courts to provide effective legal scrutiny of public health interventions. As challenges to mandates become more common, it will be interesting to see if this approach continues.
What does this mean for Covid-19 vaccine mandates?
In the context of a global health emergency, vaccine mandates may be justifiable if implemented as part of a broader suite of public health measures, and in conjunction with strategies aimed at ensuring equitable distribution of risks and benefits. It is best conceived of as a last resort, rather than first step, in achieving rates high enough for herd immunity.
Vaccine mandates require individuals to assume a small degree of individual risk for the benefit of the wider community. For this reason, those imposing mandates need to ensure that the burdens of vaccination are minimised and equitably distributed. This might entail providing paid time to attend vaccination appointments or transport assistance, but also extends to appropriate support in the event of a serious adverse event. The recent introduction of a Covid-19 vaccine indemnity scheme is an important step in this direction, although it is limited to providing compensation for the cost of injuries in excess of $5000.
It is useful to identify the causes of low vaccination uptake before introducing a mandate, so as not to exacerbate existing disadvantage. Addressing issues related to public trust and access are likely to go a significant way towards mitigating the effects of vaccine hesitancy, without the need for restrictive or punitive measures. Even in rare cases where equitable access and public trust are assured, those seeking to implement mandates need to be aware of evolving risk-benefit profiles, and to engage in regular review to ensure that a mandate continues to be the least restrictive effective means of achieving the desired goal. As the pandemic comes under control, such restrictive policies will become increasingly difficult to justify.
Dr Rebekah McWhirter is Senior Lecturer in Health Law and Ethics in the School of Medicine at Deakin University, and Adjunct Senior Research Fellow with the Centre for Law and Genetics in the School of Law at the University of Tasmania.
Suggested citation: Rebekah McWhirter, ‘Lymph or liberty: ethics and human rights in mandatory COVID-19 vaccination’ on ILA Reporter (14 October 2021) <https://ilareporter.org.au/2021/10/lymph-or-liberty-ethics-and-human-rights-in-mandatory-covid-19-vaccination-rebekah-mcwhirter/>