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  • Writer's pictureDurham Pro Bono Blog

Are Mandatory Vaccinations the Answer to the Falling Vaccine Uptake?

Disclaimer: The views expressed are that of the individual author. All rights are reserved to the original authors of the materials consulted, which are identified in the footnotes below.


Background


In 2019, the World Health Organisation declared that the UK had lost its “measles-free” status after a drastic increase in measles cases from 284 confirmed cases in 2017 to 991 cases in 2018.[1] This has occurred due to falling vaccination rates in England.[2] This article aims to examine whether mandatory vaccinations really provide the ideal solution to falling vaccine uptake.


















Mandatory Vaccinations


At first glance, mandatory vaccinations may certainly appear to be the ideal solution to falling vaccination rates. Unlike other choices concerning individual autonomy, the consequences for refusing to vaccinate a child are not only detrimental to the parent and the child, but also endanger the health of vulnerable groups such as the elderly and the immuno-compromised. For measles, 90-95% of the population needs to be vaccinated to produce herd immunity.[3] Those who are vaccinated will not transmit the disease, whilst those who are unvaccinated receive a form of indirect protection. A small drop in vaccine uptake can endanger this effect, putting the health of the general population at risk.


Furthermore, one might argue that parents who actively decide against vaccinating their children (as opposed to those who fail to do so due to inconvenience or complacency) do not have legitimate reasons for doing so. Such hesitancy is presumably derived from unfounded or misguided concerns regarding vaccines. However, vaccinations have been proven to be a safe and effective measure against infectious disease. On this occasion, shouldn’t the balance between individual autonomy and protection of society’s most vulnerable tip towards the latter?


Self-Protection


In his essay, ‘On Liberty’, the philosopher John Stuart Mill argued that the only justification for interfering with an individual’s autonomy was self-protection, or preventing harm befalling others.[4] According to this principle, a parent’s freedom to make decisions on behalf of their offspring can be limited if doing so would protect children from harm. The state compelling vaccinations for children, even against their parent’s wishes, would certainly achieve this goal. A child may lack the capacity to appreciate the significance of being vaccinated, both for themselves and for the wider community. Even if the child is old enough or sufficiently mature, they may still be subject to undue pressure from their parents. State intervention would bypass these complexities and safeguard the wellbeing of each child, regardless of parental beliefs.


Individual Freedom


Furthermore, the concept of individual freedom is based on the premise that we are autonomous beings with the competence to make decisions for ourselves, and by extension, our children.[5] We live in an age where we have a wealth of knowledge available at our fingertips; parents can readily access resources that will help them in a decision-making capacity. But the other side of the coin is a glut of misinformation, threatening to undermine freedom of choice. Despite having long been discredited, Andrew Wakefield’s 1998 paper on the link between autism and the MMR vaccine has an enduring legacy, and the growth of social media has added fuel to the fire.

Facebook and Youtube algorithms mean that a vaccine hesitant parent searching for information may find themselves in a rabbit hole of anti-vaccination propaganda.[6] In this way, small cracks of doubt can even escalate into fully-blown paranoia. Such beliefs are difficult to dismantle as groups dedicated to spreading the ‘anti-vaccine message’ will often communicate in echo chambers, where members reinforce and validate each other. Potentially, parents are even more susceptible to such communities, stemming from a general anxiety over their child’s welfare. Consequently, they may magnify the potential side-effects of vaccinations and undervalue their benefits.[7] On this basis, one could argue for the return of good old-fashioned paternalism: where parents fail to act appropriately, the state should step in to protect the interests of minors.


State Interference


But when it comes to protecting the most vulnerable in our society, it is easy to be blinded by emotion, and consequently underplay the gravity of mandatory vaccines as a measure.


Enforcing a medical procedure constitutes a high degree of state interference, and should accordingly require a high threshold of justification. This is problematic, even for those of us who aren’t ideologically opposed to vaccines, as such a measure might set a dangerous precedent.

If we allow mandatory vaccinations, then at what point do we draw the line for state regulation?

For example, with the increase in childhood obesity, one might question whether the government should consider intervening more directly here as well. After all, the detrimental effects of obesity on health are well-documented, and children have a limited capacity to appreciate the consequences of an unhealthy lifestyle.


By permitting mandatory vaccinations, we may also be compromising our rights to bodily autonomy and self-determination to the state in one fell swoop.

Treading with such caution might seem excessive, but it is appropriate for the extent of state intrusion involved in a mandate. Mandatory vaccination schemes could also be contravening the European Convention on Human Rights (ECHR). There may be a potential breach of Article 8 (right to respect for private life) as one could argue that parents should be allowed to raise their children in the manner they see fit, and this extends to control over their health. Article 9 (right to freedom of thought, conscience and religion) may also come into play, as the state should generally demonstrate respect for the beliefs of its citizens, no matter how mistaken said beliefs are.


Articles 8 and 9 are qualified rights, which are subject to a general proportionality test. This means that an interference with the rights under Articles 8 and 9 must be ‘prescribed by law’, serve a ‘legitimate aim’ and ‘necessary in a democratic society’.

Firstly, for the purposes of this hypothetical case, let us imagine mandatory vaccinations are part of UK domestic law.

Secondly, it is likely that the mandatory vaccinations would serve a ‘legitimate aim’ as they would fall into the ‘protection of health or morals’ exceptions allowed under Articles 8(2) and 9(2). There is also a rational connection between compulsory vaccinations and the purpose of protecting health.

Lastly, for the third limb, we need to consider whether there was a ‘pressing social need’ for the interference and whether it was proportional. Arguably, preventing the spread of infectious disease would constitute such a need, but it is questionable whether mandatory vaccines are proportionate to the aim of protecting health.


This is because less invasive measures are available, which may be equally (or more so) effective. However, the Court may still hold that the interference is within the margin of appreciation allocated to domestic authorities (as seen in Boffa v San Marino[8]), and the ECHR rights would not be violated. Regardless, as Grégor Puppinck notes, alternative measures would be ‘more respectful of the physical and moral integrity of the persons, as guaranteed in Articles 8 and 9.’[9]


Furthermore, mandatory vaccinations fundamentally fail to acknowledge the reasons why some parents are actively deciding against vaccinating their children. While the issue of parents failing to vaccinate their children simply due to reasons of practicality or complacence may be fixed, there are still parents who have actual concerns about vaccines.

Having a mandate to impose compulsory vaccination would inevitably foster a culture of resentment, and potentially increase scepticism regarding vaccines.[10]

A more effective solution would be to educate parents. Healthcare providers should ensure any concerns of parents who are uncertain about the content or effect of vaccines are properly addressed. Moreover, parents should be directed towards reliable resources online to combat the spread of misinformation. Such an approach would not plaster over the issue, but would actually address the root causes of falling vaccine uptake, which would be ‘more sustainable’ than mandatory schemes.[11] Other countries also offer an insight into alternative approaches. The Australian government, for example, introduced the ‘No Jab, No Pay’ policy, whereby parents whose children have not been fully immunised, or are not on a catch-up schedule will not receive childcare benefits.[12] Such a policy would increase compliance rates whilst also demonstrating greater respect for individual beliefs.


Conclusion


Ultimately, this article concludes that mandatory vaccination schemes are certainly not the panacea they appear to be. Although mandatory vaccinations do achieve their primary goal of increasing vaccine uptake, they are problematic for human rights and do not address the root causes of falling vaccine rates. Values of self-determination and individual autonomy cannot be easily cast aside, particularly when there are solutions which are less intrusive to liberty.

Shayahi Kathirgamanthan (Medical Law and Ethics)


SOURCES


[1] Public Health England, ‘Measles in England’ < https://publichealthmatters.blog.gov.uk/2019/08/19/measles-in-england/>, accessed 26 November 2019


[2] Sarah Boseley, ’Drop in vaccination rates in England alarming, experts warn’ (The Guardian, 26 September 2019) <https://www.theguardian.com/society/2019/sep/26/drop-in-vaccination-rates-in-england-alarming-experts-warn>, accessed 30 November 2019


[3] Manish Sadarangani, ‘Herd Immunity: How does it work?’ (Oxford Vaccine Group, 26 April 2016) <https://www.ovg.ox.ac.uk/news/herd-immunity-how-does-it-work>, accessed 26 November 2019


[4] J.S. Mill, On Liberty (first published 1859, Batoche Books Limited 2001) 13


[5] John Coggan, ‘The Nanny State Debate: A Place Where Words Don’t Do Justice’ (Faculty of Public Health, November 2018) 7 <https://www.fph.org.uk/media/2009/fph-nannystatedebate-report-final.pdf>, accessed 4 December 2019


[6] Julia Carrie Wong, ’How Facebook and YouTube help spread anti-vaxxer propaganda’ (The Guardian, 1 February 2019) <https://www.theguardian.com/media/2019/feb/01/facebook-youtube-anti-vaccination-misinformation-social-media>, accessed 30 November 2019


[7] EM Wearmouth, ‘Children, vaccination and UK law’ (2014) 99(1) <https://adc.bmj.com/content/99/Suppl_1/A193.1>, accessed 26 November 2019


[8] Boffa and Others v. San Marino (1998) DR 95


[9] Grégor Puppinck, ‘ECHR & Compulsory Vaccination’ (European Centre for Law & Justice, 2017) < https://eclj.org/conscientious-objection/echr/refus-de-la-vaccination-obligatoire--la-cour-europenne-tranchera-bientt), accessed 27 November 2019


[10] Henry Partouche, Serge Gilberg, Vincent Renard, Olivier Saint-Lary, ‘Mandatory vaccination of infants in France: Is that the way forward?’(2019) 25(1) EJGP <https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6394317/>, accessed 27 November 2019


[11] Ibid


[12] Australian Government, Department of Health, ‘No Jab, No Pay – New Immunisation Requirements for Family Assistance Payments’, <https://www.health.gov.au/sites/default/files/no-jab-no-pay-fsheet.pdf>, accessed 4 December 2019

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