Mandatory COVID-19 Vaccines: A Step Too Far?
The approach of public health bodies and the government in the United Kingdom has traditionally been to encourage people to be vaccinated. Vaccinations are not mandatory, despite their benefits, but instead highly recommended.
Indeed, the law seems to exclude this possibility. While Sections 45B and 45C of the Public Health (Control of Disease) Act 1984 grant the Secretary of State authority to create new “health protection regulations” through delegated legislation, Section 45E expressly excludes regulations relating to vaccinations.
Elsewhere in the law, however, the importance of vaccinations has been accepted. Most recently, in London Borough of Tower Hamlets v M and Others  EWHC 220 and Re H (a child) (Parental Responsibility: Vaccination)  EWCA Civ 664, courts recognised the power of local authorities to override the objections of parents where there is a care order under the Children Act 1989.
Within government, the significance of vaccinations has also been acknowledged. A governmental Green Paper on “Prevention in the 2020s” described vaccinations as “one of the most cost-effective health interventions” for “saving lives, protecting vulnerable groups and reducing disability”, whilst easing the pressure on the National Health Service.
Yet, in recent years, there has been a decline in the rate of vaccinations within the UK. According to NHS Digital, in the year 2018-19 “coverage declined in all 13 measures of coverage for 9 routine childhood vaccinations, compared to the previous year”. In 2018, the UK even lost its measle-free status granted by the World Health Organisation only a year before. The aforementioned government Green Paper on prevention was published in response to this decline, promising a “vaccination strategy” to be launched in 2020. Speaking at the Conservative Party conference in September 2019, Matt Hancock even went so far as to say that the government was “seriously considering” making vaccinations compulsory for children going to school.
This would not be an unprecedented measure. In France, eight new vaccines were made mandatory in January 2018, bringing it to a total of 11 vaccines required for children attending state schools. Similar steps have been taken in other European countries such as Italy, Croatia, and Poland. In the United States, all 50 states have issued mandates which require schoolchildren to receive certain vaccinations, allowing some exemptions on medical, religious, or philosophical grounds.
The question of whether vaccinations should be made mandatory has never been more pertinent than today. Across the world, pharmaceutical companies and laboratories are racing to find a vaccine which could enable us to control the COVID-19 pandemic. For this to work, as many people as possible will need to have the vaccine and the government will need to roll this out as quickly, and as effectively, as possible.
The strategy to do so is most likely to mirror the government’s approach to this year’s flu vaccine, albeit on a larger scale, prioritising the vulnerable and the elderly. However, it is possible that the government may also consider imposing further measures, making the vaccine mandatory for certain groups or even the entire population. Given the publicity surrounding the failures of ongoing trials and concerns about the safety of any future vaccine, which may have been rushed through the traditional trial process, any such measures may not be well received.
In order to validate taking such extreme measures, the government would need evidence of the practical benefits. It would have to show that the vaccine was both safe and effective. However, this may be difficult. Evidence of the effectiveness of vaccinations abounds and the World Health Organisation (WHO) has declared it to be one of the greatest health resources at our disposal, emphasising the importance of vaccinations for herd immunity. Yet, even the WHO has not been clear on whether mandatory measures are worthwhile. Furthermore, the head of the UK’s vaccine task force has cautioned that a COVID-19 vaccine may not be as effective as one might hope, warning that even once a vaccine is available and in distribution, the virus will not be eliminated.
Even if the benefits can be proved, ethical and legal considerations are likely to prevent the government from imposing mandatory measures. Having already come under fire for the stringency of lockdown measures imposed during the course of this year, the government will be anxious to avoid further criticism. A mandate may be perceived as an intervention into people’s autonomy to make choices about their own health.
Since the Public Health Act 1984 does not make allowances for such a measure, a new bill would need to be approved by Parliament, setting out the possible grounds for exemption and the penalties to be imposed. Bearing in mind the possible concerns from members of their constituencies, it is possible that some Members of Parliament would not vote in favour of this and it may not receive the support of both Houses. Even if it were approved by the legislature, any mandate would certainly face subsequent legal challenges.
The government is unlikely to risk exposing itself to such criticism unless it is certain that the vaccination would considerably limit the spread of coronavirus and thus ease the pressure on the economy, without exposing people to additional health risks. Despite the unprecedented public health situation facing the UK, it seems unlikely that this will be sufficient to justify the imposition of the UK’s first mandatory vaccination. Following the precedent set in other countries, a more limited mandate may be introduced, reserved to schoolchildren. However, given that this age group has been considered the least vulnerable perhaps even this is unlikely.
Whether or not a COVID-19 vaccination is officially mandated by the government, it is likely to be required in other forms. In certain areas of employment, such as the NHS, staff may be asked to have the vaccination due to the high risks in their place of work. Furthermore, certificates of vaccination may effectively become a new form of passport, required by airlines and even other countries before travel. The Australian Health Minister, for example, has said that he “wouldn’t rule out” a requirement for tourists to be vaccinated before they travel. In effect, it may make little difference whether a mandate is introduced or not – the COVID-19 vaccination is likely to be a requirement for many of us in the years to come.