By Dr. Raphael NyarkoteyObu, ND, PhD
Public opinion on vaccines is heavily divided. And, of course, discussions about compulsory vaccination, oftentimes based on fundamental human rights arguments, tend to be heated, due to the dicey nature of the topic. As a final year student of the Law, I have decided to review the legal position from court-based law and statutory position on this very important subject.
Should Vaccination 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. Out of those, 62 states impose one or more penalties for non-compliance; mostly financial or educational (such as refusing school enrolment).
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. There is also a battle ground for mandatory vaccination in South Africa and Nigeria.
In Ghana, the Public Health Act, 2012(Act 851) Section 22 (1) provides the framework for the Minister to initiate compulsory vaccination. It states: The Minister may by executive instrument, generally or with reference to a particular district, area, or place or with respect to a particular class or classes of persons, order the persons to whom the instrument applies who do not produce satisfactory evidence of successful vaccination, to be vaccinated by a public vaccinator, unless in the opinion of the public vaccinator, the vaccination would be injurious to health”.
Section 23 and 24 of the Act 851 also deal with the framework for vaccination of adults and children. Section 25(1) also gives the power to the public vaccinator to enter anywhere as prescribed by the act to vaccinate, while Section 30 prescribes the penalties attached to those who violate the order. One of such penalties include a summary conviction to a fine of not more than fifty penalty units or to a term of imprisonment of not more than three months or to both, and when the obstruction continues after conviction, to a fine of not more than ten penalty units for each day during which the failure continues.
Judicial Decisions on Compulsory Vaccination
When the UK government opened the consultation on mandatory vaccination, the Strasbourg court published a press release informing that it had decided not to grant interim measures to suspend the compulsory vaccination program of medical professionals in Greece. The request for such measures was submitted by 30 doctors, nurses and paramedics from public and private practices in Greece.
This Greek case is not the first time the human rights court has dealt with compulsory vaccination issues. In April 2021, the court decided the case of Vavřičkaand Others v the Czech Republic ECHR 116. This case stems from the pre-COVID era and has to do with the Czech policy of mandatory vaccination of children, but it can be used as a guide for the new mandatory COVID-19 government policies.
In the Czech Republic, children must undergo mandatory vaccination for several diseases. If parents do not comply with this policy, they can be fined and the children cannot attend preschool. Though the European court of human rights supports the applicants’ view that this policy interferes with their right to private life, the court opined that this interference is justifiable. The Czech government successfully persuaded the court that this policy is necessary to protect the health of the population.
As witha case concerning human rights law, it appears there is no straightforward answer. Compulsory vaccination is meddling with the human right of bodily integrity, which is a part of the right to private life enshrined in the Universal Declaration of Human Rights as well as in the European Convention on Human Rights. Nevertheless, not every interference with this right is automatically illegal. The legality depends on numerous factors.
Naturopaths, generally, are against vaccination. In a recent case, a California-based naturopathic doctor is the first person in the United States to face charges of offering fake “homeoprophylaxis immunization” coronavirus vaccines and falsifying COVID-19 vaccination cards saying that the purchasers of the pellets had received doses of the Moderna vaccine and also spreading misinformation concerning the vaccine.
Fatalities from Vaccination
Obviously, the concern from the general public has to do with the side effects associated with compulsory vaccination. Who takes the liabilities in this case? In the locus classicus case, European Commission on Human Rights Association of Parents v the United Kingdom(No. 8416/78) explicitly states that if a state maintains a control and monitoring system that aims to minimize vaccine-associated side effects, isolated fatalities do not constitute an interference with the right to life. Interestingly, this can only be true for isolated mortalities that were unforeseeable.
Compulsory vaccination is therefore not per se an interference with the right to life in its manifestation as a prohibition of intentional killings; as long as sufficient precautionary measures are in place; not even if isolated life-threatening events or deaths occur.
Compulsory Vaccination: My Private life or Not?
There are many who also hold the assertion that their health is their private property,hence, they can decide not to subject themselves to government compulsory vaccination. The idea of ‘private life’ basically safeguards the right to make decisions over one’s own body and life. This also includes the decision to accept medical treatment or services and should be based on consent. However, in Vavricka v Czeck Republic ECHR 116, the Court went one step further and held that the duty to get vaccinated and the consequences attached to it cannot be dissociated.
Others who also refused vaccinations cited religious beliefs and health philosophies and principles. However, in Boffa and 13 others v San Marino(no. 26536/95 15 January 1998), the Commission explicitly stated that vaccinations do not constitute an interference with the freedom of thought, conscience and religion, as ‘the term “practice” does not cover each and every act which is motivated or influenced by a religion or belief’.The commission further emphasized that the obligation to be vaccinated in San Marino applied to everyone, regardless of religion. So, in the case Vavricka v Czeck Republic, in which three of the applicants also complained of an alleged violation, the Court cited the Commission’s reasoning in the Boffa case. It further referred to the cases of Bayatyan v Armenia(application no. 23459/03), and Prettyv the United Kingdom(2346/02).On the grounds of merit, the Court found the complaint inadmissible.
Others also raised the case of interference, especially the necessity in a democratic society. In Solomakhin v Ukraine(ECHR 15 Mar 2012. 24429/03,  ECHR 451), where the Court answered these questions in one sentence only: “The Court further notes that such interference was clearly provided by law and pursued the legitimate aim of the protection of health”.
In conclusion, it appears that with cases of compulsory vaccination, the court looks at the community benefit in totality,instead of individual benefits or religious sects in determination.
The author is a final year Bachelor of Law(LLB) student at the Kings University College, an Honorary Professor of Naturopathyand the President of NyarkoteyUniversity College of Holistic Medicine and Technology. E-mail: [email protected]