Compulsory Vaccination for Covid-19 and Human Rights Law In The UK
By Felix Oram
This article is a written response to the recently submitted paper [the Paper] to a Parliamentary sub-committee by Dr Lisa Forsberg, Dr Isra Black, Dr Thomas Douglas and Dr Jonathan on the human rights law dimensions of compulsory vaccination[1].
The paper has garnered wide-spread attention on social media and has fuelled debate that the government is considering making the SARS CoV-2 vaccine compulsory for the UK population.
Under the ‘common law’ in the United Kingdom compulsory vaccination is unlawful on the basis that no medical procedure or treatment that violates the bodily integrity of an individual can be administered without the informed consent of the individual concerned (or their legal guardian if they are a child). The current legal principle of informed consent is most clearly outlined in the case of Montgomery v Lanarkshire Health Board (2015)[2], in which Lord Kerr and Lord Reed delivered the judgment. The principle, in essence, is that “an adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.”[3]
Widget not in any sidebars
The authors of the Paper [the Authors] argue that ‘when a vaccine becomes available at scale, the Government should give serious consideration to compulsory immunisation’ and they assert that ‘there is an arguable case for the compatibility of compulsory vaccination with human rights law.’[4] This article refutes their claims and will attempt to highlight the inconsistencies and inaccuracies of their arguments.
The Authors strive to make two arguments with respect to human rights law and compulsory vaccination: a lockdown parity argument, and a mental health parity argument.
The Lockdown Parity Argument
The lockdown parity argument is based on the recent judgment in Dolan v Secretary of State for Health[5], which held that the lockdown measures were not incompatible with European Convention on Human Rights (ECHR) rights, notably article 5 (the right to liberty), article 8 (the right to a private and family life), and article 11 (the right to freedom of assembly). The judge, the Rt Hon. Mr Justice Lewis, did not deny that the lockdown restrictions and regulations engaged ECHR human rights, rather he held that interference with these rights was justified because of the potential human rights impacts of Covid-19 for individuals and others in society, and lawful by virtue of the State’s positive duty to safeguard the life within its jurisdiction.
It is important to note that Articles 5, 8 and 11 are ‘qualified’ human rights that are open to a degree of interference from the State if that interference is both ‘necessary and proportionate’. In the context of the right to freedom of assembly (article 11) Lewis J recognised that the right had been interfered with as a result of [Coronavirus] Regulation 7 but held that the interference was not disproportionate because of the context in which it was made, namely, “a pandemic where a highly infectious disease capable of causing death was spreading. The disease was transmissible between humans. The scientific understanding of this novel coronavirus was limited. There was no effective treatment or vaccine.”[6]
This article does not seek to examine in any significant detail the judgment of Mr Justice Lewis in the Dolan case (although for reference a review can be found here[7]), but it is significant to note that the Court of Appeal, on the 1st December 2020[8], refused permission to appeal the decision of Lewis J to refuse permission to bring a claim for judicial review in respect of the human rights arguments made by the claimants / appellants. This means there is now legal precedent to support the position that the coronavirus regulations and restrictions do not interfere with the human rights of UK citizens and are both necessary and proportionate.
The Authors claim that the decision of Lewis J, upheld by the Court of Appeal, can be extended to support the position that any primary legislation that mandates compulsory vaccination for SARS-CoV-2 will be lawful and is human rights compatible. This article will refute that claim.
A good starting point for this debate is the case of Pretty v UK (2002)[9] from the European Court of Human Rights (ECtHR), where in paragraphs 61 to 78 the Court addresses the legal position in relation to Article 8, the right to a private life in the context of the right to assisted suicide through medical intervention. It is an important judgment because the Court states that “in the sphere of medical treatment, the refusal to accept a particular treatment might, inevitably, lead to a fatal outcome, yet the imposition of medical treatment, without the consent of a mentally competent adult patient, would interfere with a person’s physical integrity in a manner capable of engaging the rights protected under Article 8(1) of the Convention.”[10]
The Authors recognise the significance of the Pretty case in their paper, but it is important to stress the significance of the judgment as it applies to the UK, namely that any medical treatment performed without the informed consent of a patient would be unlawful under the Human Rights Act 1998 for the simple reason that it would interfere with a patient’s Article 8 right to ‘a private life’. Vaccination qualifies, irrefutably, as a medical treatment, and it therefore follows that any, and all, forms of vaccination require the consent of the recipient, and that lack of consent equates to a violation of a patient’s human rights.
As already mentioned in paragraph 2 above, the principle of informed consent is firmly established (some might say enshrined) in the common law through numerous cases, Montgomery v Lanarkshire being the most important, and one might, therefore, conclude that the jurisprudence of the European Court of Human Rights would not be necessary to uphold the argument that interfering with the bodily integrity of a human being without their consent is unlawful. However, primary legislation supersedes common law and, in the event that legislation mandating compulsory vaccination for SARS-CoV-2 reaches the Statute through the legislative process, it is more than probable that there will come a time where the UK courts will be required to consider whether this legislation is compatible with the Human Rights Act 1998 (HRA). It would be at this juncture that the decisions of the ECtHR, including the case of Pretty, will become relevant.
Prior to any legislation reaching the Statute, and the courts being required to determine compatibility, a government minister would be required to make a statement to the Houses of Parliament explaining how the legislation is compatible with the sixteen ECHR rights and this, in turn, would allow for Parliamentary scrutiny and debate. Should legislation pass through both Houses into law then the courts would become the last line of defence for those seeking to challenge its lawfulness and human rights compatibility.
Returning to the legal argument, the Authors seek to defend the case for mandatory vaccination on the basis that it represents a proportionate infringement of an individual’s human rights given that we are in the middle of a pandemic. They cite the fact that the Administrative Court in Dolan rejected the claimant’s argument that the lockdown restrictions and Regulations infringed their article rights as evidence that future courts would view the violation of an individual’s bodily integrity as a result of a compulsory vaccination in the same way, namely that while it would infringe their rights it would be a necessary and proportionate response to the challenge faced and a mechanism by which society as a whole could be protected and safeguarded.
In order to evaluate whether this proposed interference with bodily integrity (a Convention right) is proportionate and necessary in any context a proportionality test would need to be undertaken by the courts. The European Court of Human Rights is one such court where proportionality reviews have been conducted, although it should be noted that the Court has not provided a detailed set of guidelines as to how any such test or review is to be carried out in practice. Notwithstanding the Courts reticence to provide clear guidance, it is widely accepted that there are three classic elements to a proportionality review; necessity, suitability and a reasonable balance between the interests concerned.
In the somewhat infamous Sunday Times[11] case the ECtHR provided a rather extraordinary definition of “necessity in a democratic society” in which it stated that:
It must…be decided whether the “interference” complained of corresponded to “a pressing social need”, whether it was “proportionate to the legitimate aim pursued” [and] whether the reasons given by the national authorities to justify it are “relevant and sufficient.”[12]
Before providing a more detailed assessment of the concepts of suitability, necessity and ‘reasonable balance’ in the context of a proportionality test, a brief note on the concept of legitimacy. Legislation that interferes with a convention right can only be lawfully upheld if it is part of a broader legitimate aim. Upon initial consideration, it will undoubtedly seem that the aim of trying to negate the impact of SARS-CoV-2 through a program of immunisation is both legitimate and desirable. The government has a duty to protect the health of all its citizens and measures taken to secure this outcome will be widely lauded. It should be noted, however, that there is mounting evidence to support the view that there is no need for a vaccination program for a disease that has an Infection Fatality Rate (IFR) for people under the age of 70 of between 0 and 0.31 percent[13], for which the average age of death in the UK is 82[14], and for which there is already a great deal of prior immunity. In his article titled ‘What SAGE Has Got Wrong’ Dr Mike Yeadon, the former Chief Scientist and Vice President of the pharmaceutical giant Pfizer and a man with over 30 years of experience in the field of developing medicines for Allergies and Respiratory illnesses, states that “there is absolutely no need for vaccines to extinguish the pandemic…You do not vaccinate people who aren’t at risk from a disease.”[15]
I highlight the article from Dr Mike Yeadon to make a very simple point; there is disagreement within the scientific community as to the danger posed by SARS-CoV-2 and whether the nation is actually in the middle of a pandemic. There is consensus that in March and April 2020 a virus was spreading throughout the UK (and globally) that was hospitalising people and causing a spike in deaths but the argument that it still continues to pose a significant threat to life in December 2020 is debatable (and disputable) given the data now currently available. A simple way of highlighting this point is to look at the Office for National Statistics (ONS) data for age-standardised mortality rates per 100,000 people for the months of September, October and November 2020. It is important to look at all deaths as opposed to just Covid-19 related deaths because this provides us with an overview of how deadly the pandemic is at the current time and allows us to compare deaths for that month to the same month in previous years. This is what the data shows us:
In September 2020 in England & Wales there were 3,712 age-standardised deaths from all causes per 100,000, in October 2020 there were 4,012 deaths, and in November 2020 there were 4,604 deaths[16]. When compared to the number of deaths in the previous 20 years this ranks September 2020 at 15th, October 2020 at 13th, and November 2020 at 8th. This means that there have been fourteen, twelve and seven years, respectively, in the last twenty years where more people have died in those months of the year than they did in the corresponding month in 2020. This data supports the view that the country is not in the middle of a deadly pandemic that is killing people in excessive or alarming numbers, and undermines, some would say completely negates, the argument that compulsory nationwide vaccination is a legitimate aim.
Returning to the proportionality test. The first element is ‘suitability’. Is the legislation capable of achieving the aim? Putting aside the argument that the aim itself may no longer be legitimate (see paragraphs 15-18 above), there are huge question marks surrounding the efficacy of any vaccination program, and whether any of the vaccines will actually work, over the long term, to eliminate SARS Cov-2 from the population. Take the flu vaccination for example, the Centre for Disease Control and Prevention (CDC) in the USA have calculated that, since 2009-10, the flu vaccine has an average effectiveness rate of 43.8%.[17] Furthermore, in a paper published in the Lancet in 2011 in which a meta-analysis of the effectiveness of the flu vaccine was carried out the authors stated that “influenza vaccines can provide moderate protection against virologically confirmed influenza, but such protection is greatly reduced or absent in some seasons.”[18]
The influenza vaccine has been in circulation for many decades and has been extensively developed through both clinical trials and, in real terms, through administration to the wider population. Yet, despite all of the money, research and time spent, the flu vaccine still has a relatively low rate of effectiveness (as low as 15% in some years). This highlights the danger in presuming that a vaccine for SARS-CoV-2 will be a panacea to the current coronavirus pandemic and will achieve the health outcomes desired by the government. It is, in this author’s view, completely reasonable to argue that legislation mandating compulsory vaccination will not be capable of achieving its aim of eliminating SARS-CoV-2 from the UK population, and that such legislation would fail the suitability component of the proportionality test on the basis that vaccination itself is an unreliable method of eliminating respiratory viral pathogens from any human population.
The second element to the proportionality test is ‘necessity’. The question of whether legislation that interferes with a Convention right is ‘necessary’ involves looking to see whether there are alternatives through which the same aim can be achieved and comparing these to see which interferes less intrusively with a conflicting right. In the context of mandatory vaccination, it is self-evident that it interferes with convention rights, what needs to be considered, therefore, is whether there are there alternative, less intrusive, options. Voluntary vaccination would be the obvious starting point. A vaccination program that relied on the public choosing to vaccinate would not interfere or infringe on any convention rights because the individuals concerned would be providing their informed consent to the medical procedure. The debate surrounding this dichotomy between compulsory and voluntary vaccination then turns to the issue of effectiveness and uptake. The argument against voluntary vaccination and in favour of compulsory vaccination is that not enough people would take the vaccine if it were voluntary (due to what is termed ‘vaccine hesitancy’), and this would undermine its efficacy. The question for the courts will be whether interference with bodily integrity and with convention rights can be justified to achieve vaccine efficacy.
Alternatives to a vaccination program for treating and managing SARS-CoV-2 should also be considered. The UK government authorised the use of the Dexamethasone in June 2020 throughout the NHS to treat Covid-19. The drug has been proven to reduce the risk of death significantly in patients on ventilation by as much as 35% and patients on oxygen by 20%, reducing the total 28-day mortality rate by 17%[19], and is considered to be a safe and effective treatment. There is also the highly controversial treatment of hydroxychloroquine which has been highly politicised during the pandemic. While the treatment has been declared to be ineffective by Public Health England there is much academic and scientific disagreement on this. For example, in May 2020 the American Journal of Epidemiology published a paper by Professor Harvey A. Risch, Professor of Epidemiology at the Yale School of Public Health, in which he canvassed, based on data from five trials, the use of hydroxychloroquine alongside azithromycine (HQ + AZ) and zinc as an effective treatment for COVID-19.[20] Professor Risch followed this paper with an article in Newsweek on the 23rd July 2020 in which he identifies seven more studies which demonstrated similar benefits.[21] One final point on hydroxychloroquine worthy of mention is a systematic review published in Science Direct in November 2020 by C. Podromos and T. Rumschlag.[22] They concluded after analysing 43 reports on trials into the use of HCQ that it was consistently effective as a treatment for COVID-19 when provided early in the outpatient setting.
The point being made is that there are alternative treatments to vaccination and that it is not reasonable or accurate to argue that vaccination, let alone mandatory vaccination, is absolutely necessary to treat and manage SARS-CoV-2.
The issue of necessity can also be addressed by looking at the number of deaths from COVID-19. In real terms, in spite of the number of daily cases from COVID-19 peaking on 23 December 2020 at 39,237[23], the death rate has not hit the dangerous levels seen in March and April at the height of the pandemic. This is clear from the fact that the daily death rate peaked at 744 on the 23 December 2020 in comparison to the 1,073 daily deaths peak on 8 April 2020[24]. It should also be noted that the death total is for people who have tested positive for SARS-CoV-2 in the previous 28 days before their death, but this does not mean that they actually died from Covid-19. They could have died from a pre-existing, underlying health condition or some other cause but happened to test positive for SARS Cov-2 in the preceding 28-day period. There is a strong case to be made that such a system of classification (of deaths) leads to an over-inflation of COVID-19 deaths.
The third element of the proportionality test is ‘proportionality’ in the strictest sense. It concerns the relationship between the interests at stake and requires that a reasonable balance should be achieved among the interests served by the measure and the interests that are harmed by introducing it. This is sometimes referred to as the search for a ‘fair balance’, something that domestic courts are more than familiar with when delivering judgments and applying the law. An example of this can be found in the judgment of Mr Justice Lewis in the Dolan case, where he was required to evaluate whether the government Regulations struck a ‘fair balance’ between the requirement to protect the health of the citizens of the UK and to preserve the convention rights of the very same citizens. The conclusion that he reached was that they did and that the interference with convention rights were proportionate, necessary and therefore lawful.
There is no predetermined means of knowing exactly how the national courts would evaluate a law mandating compulsory vaccination when applying this third element of the proportionality test, but it is helpful to identify what the competing interests are and what a fair balance might be. The safety and protection of the country from a dangerous virus would certainly rank high as an interest served by such a measure, but there is also a considerable amount of importance attached to the principle of bodily integrity and personal autonomy. For example, Article 7 of the International Covenant on Civil and Political Rights states that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”[25]. Similarly, Article 3(2) of the EU Charter of Fundamental Rights (the right to integrity of the person) states that “in the fields of medicine and biology, the following must be respected in particular: (a) the free and informed consent of the person concerned, according to the procedures laid down by law.”[26]
While the UK has left the European Union and is not legally obligated to uphold the Charter of Fundamental Rights it is important to recognise the extent to which informed consent is widely recognised as a fundamental component of the right to bodily integrity, specifically in the context of medicine, and this detail is unlikely to be lost on the judiciary in the national courts when faced with determining the so called ‘fair balance’. The words of Lord Kerr and Lord Reed in Montgomery are worth repeating to illustrate the point that the Supreme Court consider informed consent to be of paramount importance in all medical procedures, and failure to obtain it amounts to the treatment itself being unlawful;
“consent must be obtained before treatment interfering with…bodily integrity is undertaken.”[27]
In the event that primary legislation mandating compulsory vaccination were to reach the Statute there would inevitably be legal challenges brought against the government on the grounds that such law infringes convention rights, in particular the right to a private life under Article 8 and the right to freedom of thought, conscience and religion under Article 9. It would then be the responsibility of the courts in England and Wales, and indeed the Supreme Court of the United Kingdom, to determine whether such interferences were genuinely ‘proportionate and necessary’. It is this author’s view, given the facts outlined above, that they would find it nigh on impossible to declare that violation and interference with bodily integrity, a right of fundamental importance (especially post World War 2 and the Nuremberg trials) that has significant legal precedence, would be justifiable, let alone rights compatible, under primary legislation mandating compulsory vaccination for SARS-CoV-2.
While there is undoubtedly a need to respond to the public health emergency facing the United Kingdom (and the world) as a result of SARS-CoV-2 this response needs to be tempered with perspective and balance before infringements and interferences with convention rights can be justified and deemed lawful. I have contextualised the apparent urgency of the current, so called, pandemic by highlighting evidence that shows; (i) that people are not dying in excessive numbers in the UK as a result of SARS-CoV-2 at the current time (September, October, November 2020); (ii) that there are alternatives to compulsory vaccination, namely voluntary vaccination and alternative medical treatments; and (iii) that the vaccination’s efficacy in preventing the transmission of SARS CoV-2 is questionable (given what we know about how ineffective the flu vaccine is).
Domestic courts should not uphold laws that encroach on an individual’s right to autonomy and bodily integrity without very good reason and only if it is in the overriding interests of public health and the general population. While the media and government have promulgated fear and panic in response to the spread of SARS-CoV-2, upon closer analysis, there is much evidence to support the claim that we are not in the grip of a deadly pandemic at the current time.
Much of the concern is based on the number of apparent cases, a number that has increased dramatically since June 2020, but it should be pointed out that a positive PCR test result is not evidence of an infectious person, and for the UK government to base their public health policy on this test could well go down in history as one of the most appalling errors of judgment ever made. This article shall not go into the details of how fundamentally unreliable the PCR test is as a diagnostic tool because it would divert away from the central thrust of the article. However, for those interested in such matters, I would draw attention to the following; (i) a review report by twenty-two academics and scientists of the PCR test which identifies 10 major scientific flaws at the molecular and methodological level, and the consequences that this has for false positive results.[28]; and (ii) a landmark ruling in Portugal’s Court of Appeal that held that the PCR test is unreliable and could not be used to detain four German holidaymakers who were deemed to have been illegally quarantined in the country.[29]
The Mental Health Parity Argument
This critique would not be complete without a review of the mental health parity argument propounded by the Authors of the original Paper. Their assertion was that the Mental Health Act 1983 (MHA) was a clear and relevant example of Statute law where a medical procedure administered without the consent of the patient is lawful. The specific part of the legislation they refer to is s.63 of the MHA which states that “the consent of a patient shall not be required for any medical treatment given to him for the mental disorder from which he is suffering…if the treatment is given by or under the direction of the approved clinician in charge of the treatment.”[30]
The Authors then briefly cite two cases to support their argument that mental health law permits compulsory interference with a person’s bodily integrity and that such treatment can be compatible with articles 3 and 8 of the ECHR[31]. The second of these cases, R(B) v Dr SS, concerned a convicted rapist detained under the MHA in Broadmoor and diagnosed as suffering from bipolar affective disorder.
The Mental Health Act is a very specific piece of legislation that addresses the problems facing society when dealing with persons who are mentally ill, a danger to themselves and others and who require detainment and, invariably, treatment for their mental disorder. The provisions within the MHA that authorise the use of medical procedures without consent are, therefore, a last resort; the Act does not seek to normalise or trivialise non-consensual treatment, far from it, it is ultimately concerned with administering detained patients with treatments that are specific to the mental condition that they are suffering from. The logic of this being, quite simply, that the patient does not consent to treatment because the mental disorder they are suffering from prevents them from being able to comprehend the fact that the treatment being offered is designed to alleviate their symptoms.
The same logic will not apply to the compulsory vaccination argument for the simple reason that a vaccine for SARS-CoV-2 is not a treatment for a mental disorder, rather it is a treatment for a viral infection that a person may become infected with (at some undetermined point in the future), and for which they are more than likely to recover from.
The only real parallel between a mental health argument and a compulsory vaccination argument rests on the notion of doing something to an individual in an effort to protect other members of society. The notion that a mentally ill patient is a danger to society and needs to be medicated to prevent him (or her) from harming others can be extrapolated to support the position that an unvaccinated person could (unwittingly) infect those around him/her with a virus and needs to be vaccinated to protect this eventuality from happening.
While the preservation of health for the wider population is a noble and utilitarian public health goal there is nothing in the Mental Health Act that indicates that Parliament is comfortable with introducing medical treatments that interferes with an individual’s autonomy and bodily integrity. Rather, any such interference must only be for patients who have been detained under the MHA and the treatment needs to be specific to the condition that they are suffering from.
Lord Phillips CJ in paragraph 43 of his judgment in R(B) v Dr SS articulates this point;
“The MHA is primarily concerned with the compulsory detention of patients suffering from mental disorders in order that they may receive treatment for those disorders. The compulsory detention is justified because it is necessary in order to ensure that the patient receives the treatment. Ensuring that the patient receives the treatment is justified because this is necessary for the health or safety of the patient or for the protection of others.”[32]
The patient in this case (Mr B) is a rapist and has been detained under the Mental Health Act because of the gravity of the crime(s) he has committed. His criminal acts (rape) are the result of his mental disorder, and his detainment is the first step towards protecting the public from future criminal actions that he might commit. The treatment he is being prescribed is the second stage in the process of protecting the public as it is intended to ameliorate his mental disorder and in turn eliminate the prospect of him committing sexual crimes.
The justification for infringing and interfering with Mr B’s article rights are therefore contextualised against the very important need to protect the wider society and it does not seem fair to compare an individual who chooses not to vaccinate to someone who has been detained under the Mental Health Act. An individual may choose not to vaccinate for perfectly sound reasons. For example, they may have already had COVID-19 and feel that there is no need to risk undertaking the medical procedure. Alternatively, they may decide that the speed with which the vaccine has been rushed through clinical trials means that not enough safety data has been garnered. The COVID-19 vaccines are mRNA vaccines that employ a completely new scientific approach compared with standard vaccines, and they have never been licensed for use in a human population before. It is not comparable or legitimate to compare someone who is displaying vaccine hesitancy (even if it is deemed to be potentially harmful to the health of the wider population) with someone who is suffering from a recognised mental disorder and who has been detained because they are a direct danger to the public (and themselves). While the Authors might wish to employ this analogy, to do so is not only insulting to the intelligence of the common person it is, in fact, very dangerous. Critically thinking and autonomous individuals within a free, democratic society cannot and should not be labelled as potential threats and treated with such contempt that the choices they make about what is best for them and their bodies can be sidelined and ignored.
Conclusion
Whatever a person’s reasoning, and whether we agree or disagree with it, the principles of bodily integrity and the need for informed consent for medical treatment are sacrosanct in a civilized society. Lawmakers and courts have been mindful to preserve these rights and for good reason. The horrors of what took place in Nazi Germany are a stark reminder of what happens when medical procedures and experiments are administered against people’s will.
The health emergency that we face at the current time due to SARS-CoV-2 is real, but we must keep it in perspective. There have been pandemics before this one (the Hong Kong flu in 1968 claimed 80,000 lives in the UK), and there will be more to come in the future, but the use of a medical procedure for which an individual has no choice as to whether he/she consents is a dangerous step in the direction of authoritarian rule and the arguments propounded by the Authors of the original Paper that there is legal precedent to support such a bold and invasive procedure do not hold up to scrutiny.
Any infringement of a qualified article right must be both necessary and proportionate, and as I have outlined in this article, neither of those tests are sufficiently met to justify something as serious as violating the bodily integrity of a human being who is of sound mind. Vaccine hesitancy is real, and it may be of significant concern for many in the medical profession and government, but it’s prevalence in society does not mean that individual sovereignty can be ridden roughshod over. The objective of a safe and healthy society is a noble objective but the ends, were they to involve the violation of the human rights of the individual, most certainly do not justify the means. Lawmakers and those with responsibility for public health need to find alternative methods to protect the health of the citizens of their country.
The Authors (of the Paper submitted to the Parliamentary sub-committee) assert that (i) the existing law permits compulsory interference with bodily integrity and (ii) that derogation from the common law principle of no treatment without consent is compatible with the European Convention of Human Rights. While this may be true in some very limited circumstances there is no evidence to support the view that the current SARS-CoV-2 pandemic warrants such extreme measures or that the courts in England & Wales would uphold such blatant and serious violations of Article 8 right and the principle of bodily integrity.
In concluding this article I would like to make reference to Article 9 of the ECHR; the right to freedom of thought, conscience and religion. The case law in relation to informed consent tends to revolve around potential infringements of Articles 3 and 8, but it is worth noting the role that Article 9 might play in a case dealing with the issue of compulsory vaccination. The Authors complain of ‘vaccine hesitancy’ and the issue this might pose in terms of uptake for a voluntary nationwide vaccination program, asserting that compulsory vaccination would be an important and legitimate step to eliminate the threat posed by it. However, any attempt to de-legitimise and criminalise vaccine hesitancy would, in this author’s opinion, infringe on an individual’s Article 9 right.
Vaccine hesitancy, whether we like it or not, represents the right of an individual to hold their own views and beliefs about the world. Many in government and the scientific community hold those who question the safety of vaccines in contempt and consider them to be a danger to society, but the whole point of Article 9 is that it protects those who hold unorthodox and divergent views and recognises their sovereignty and right to such beliefs. As with the other rights already mentioned, Article 9 is a qualified right and there may be circumstances when it can be infringed upon if the infringement is both ‘necessary and proportionate’, but the issue of freedom of thought, religion and conscience is important because it brings in to focus the extent to which we are genuinely tolerant and respectful in our self-declared Western, liberal and civilised societies.
It would appear that much tolerance can be found for those with divergent views held across the religious spectrum but in the field of science we are much less flexible and accepting. It is as if science has assumed a position of universal dominance and omniscience in much the same way that notions of God once did in past centuries. If people choose to ignore science, for whatever reasons, it is their right to do so. We should not tolerate a culture of science dogmatism whereby those that holds views outside the scientific consensus are pariahs and can be treated in ways that violate their rights as citizens and human beings. To allow for such practices to be employed would be in contempt of the ECHR and the Universal Declaration of Human Rights and would undermine our apparent commitment to the principles of individual sovereignty and autonomy. We abandon these commitments, both morally and legally, at our peril.
Disclaimer: This article is not intended to replace licensed medical or legal advice. All interpretations and opinions are the author’s alone and are presented for informational purposes only.
Notes:
[1] Compulsory vaccination for Covid=-19 and human rights law; Dr L Forsberg, Dr I Black, Dr T Douglas, Dr J Pugh
[2] Montgomery v Lanarkshire Health Board [2015] UKSC 11
[3] Montgomery v Lanarkshire Health Board [2015] UKSC 11. p.87
[4] Ibid, p.35
[5] Dolan & Ors v Secretary of State for Health And Social Care & Anor [2020] EWHC 1786
[6] Ibid, p.95
[7] Lockdown challenge – permission refused, Dominic Ruck Keen, UK Human Rights Blog, 7 July 2020.
[8] Dolan v SSHSC [2020] EWCA Civ 1605
[9] Pretty v UK (2002) 35 EHRR 1, p61,62,63
[10] Ibid, p.63
[11] Sunday Times (I) v UK 30 EUR, CT HR, S.62
[12] Sunday Times (I) v UK 30 EUR, CT HR, S.62
[14] The Times, 10th October 2020.
[15] What SAGE Has Got Wrong, Yeadon, M; Lockdownsceptics.org
[16] Monthly mortality analysis, England and Wales – Office for National Statistics
[17] CDC Seasonal Flu Vaccine Effectiveness Studies.
[18] Efficacy and effectiveness of influenza vaccines: a systematic review and meta-analysis, Prof M Osterholm, PhD, N Kelley, PhD, Prof A Sommer, MD, E Belongia, MD. The Lancet, 26 Oct, 2011.
[19] ‘World first coronavirus treatment approved for NHS use by government’ – Department of Health & Social Care, www.gov.uk
[20] Early Outpatient Treatment of Symptomatic, High-Risk COVID-19 Patients That Should Be Ramped Up Immediately as Key to the Pandemic Crisis, Risch, H – American Journal of Epidemiology, Volume 189, Issue 11
[21] The Key to Defeating COVID-19 Already Exists. We Need To Start Using It, Risch, A. www.newseek.com
[22] Hydroxychlororquine is effective, and consistently so when provided early, for COVID-19: a systematic review. Podromos, C, Rumschlag, T. Science Direct, Vol. 38, November 2020.
[23] ‘People tested positive’. Data.gov
[24] ‘Deaths within 28 days of positive test by date of death’. Data.gov.uk
[25] ‘International Covenant on Civil and Political Rights’, Office of the United Nations High Commissioner for Human Rights.
[26] EU Charter of Fundamental Rights, Art 3. Fra.europa.eu
[27] Ibid, paragraph 87, page 28.
[28] External peer review of the RTPCR test to detect SARS-CoV-2 reveals 10 major scientific flaws at the molecular and methodological level: consequences for false positive results – A Review Report by an International Consortium of Scientists in Life Sciences (ICSLS), Dec 2020..
[29] Judgment of the Lisbon Court of Appeal: Proc. No 1783/20.7T8PDL.L1 – handed down on 11.11.2020
[30] Mental Health Act 1983, s.63
[31] Herczegfalvy v Austria ECHR 24 1992; R(B) v Dr SS [2006] EWCA CIV 28
[32] Ibid, paragraph 43.
Image: The Free Thought Project
Felix Oram is currently undertaking Bar Training at the Inn’s of Court College of Advocacy. Areas of interest include public law and clinical negligence.
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