The year 2020 brought with it one of the most difficult experiences we could face as humankind: a pandemic. We have thus found ourselves needing to take refuge in the safety of our homes, to keep away from our loved ones and to learn a whole biosecurity protocol.
All this while awaiting the development and distribution of a vaccine that would allow us to return to normality, if that is even possible. Now, this vaccine brings with it a series of legal elements that need to be clarified.
Covid-19 vaccine: relevant legal aspects
With the prospect of a Covid-19 vaccine emerging, there are a great many elements that, from a legal standpoint, could give rise to serious debate.
Among the most relevant, we venture to list the following: the distribution and order of priority of the vaccine, that is, how an order of preference is to be established and, if it is set, what it will be? From the outset, it has become known that the idea is to give priority to healthcare staff and to the elderly.
Another controversial point is the liability of the pharmaceutical companies developing the vaccine. What guarantees do they offer as regards its safety and efficacy? At the same time, it becomes necessary to determine whether the States will bear any liability for administering these vaccines.
And finally, one of the most sensitive points on this matter has been highlighted: the strategy that the health and legislative authorities of the various countries will follow. We are referring, then, to whether vaccination is voluntary or compulsory.
It is on this last point that we shall develop this article, in order to clarify the feasibility of compelling people to be vaccinated against Covid-19.
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Origin of the debate on compulsory vaccination
For many years now, there has been a movement that opposes vaccines, considering them to be counterproductive. Whether out of distrust or out of a belief that they are an affront to freedom, these people, to this day, spread a series of negative reports against vaccines, playing up their supposed dangers.
In the current scenario of a global pandemic, which has been claiming the lives of thousands of people every day, scientists have found themselves under pressure to secure a vaccine in record time. This, of course, has an impact on the clinical trials and on determining the side effects of the possible vaccines, not to mention their effectiveness and duration.
All of the above provides the perfect breeding ground for a certain reluctance or outright opposition to accepting the vaccine. This matter has raised concern within the World Health Organisation, especially because many people state that they are not willing to be vaccinated. For this reason, some experts have suggested that it would be advisable for it to be compulsory.
Can we be compelled to be vaccinated?
Giving a quick answer is not as simple as one might think. First of all, we must assess what the nature of a vaccine is.
In this respect, we find that this is a medical treatment and, as such, the patient must give their consent for it to be administered. Thus, after a review of our legislation, it can initially be stated that vaccination is voluntary. This is because there is no legislation that expressly establishes the obligation.
Despite the above, we can say that every rule has an exception and in this case that adage holds true. Accordingly, we find that the Constitution establishes that health policy is a matter of the exclusive competence of the State, so that in the case of Spain the State could establish the compulsory nature of certain treatments in order to prevent or contain a health crisis such as the one being experienced as a result of Covid-19.
Some legislation lends support to compulsory vaccination
The first piece of legislation that might shed some light on the matter is Organic Law 4/1981 of 1 June, on states of alarm, emergency and siege, which establishes that the Government may declare a state of alarm when serious disruptions of normality occur, among them health crises such as epidemics.
Likewise, Article 12 of that same law provides that the authorities may adopt measures to combat infectious diseases. In line with this, we have Organic Law 3/1986 of 14 April, on special measures in the field of public health, which establishes that the health authorities may adopt the measures set out in that law on urgent or necessary health grounds.
If anything can be concluded from these legal provisions, it is that the obligation of vaccination may be lawfully imposed in the event of an epidemic. In particular, when the risk is collective, that is, there must be a risk to public health. In this way, the general principle of voluntariness and the fundamental right to Personal Freedom may be limited in favour of a higher collective interest.
What becomes of the individual’s freedom to act?
Against individual freedom and the right to refuse a medical treatment stands a collective good of public health that the State must safeguard. However, an aspect of vital importance that runs counter to making this procedure compulsory is that vaccination must not entail high risks.
It is here that science, at this moment, does not provide a one hundred per cent reliable answer, for which it requires a long period of verification that offers guarantees of health safety for the vaccinated persons.
Strategy as the answer
According to surveys carried out, 70% of those who took part stated that they would be willing to be vaccinated as soon as the vaccine was available and recommended. On the other hand, the remaining 30% are not entirely closed off or against the vaccine.
It turns out that 70% of those who would, in principle, be reluctant, are so out of fear of the side effects, more than 20% believe it would not be as effective as promised, while 9% are opposed because they are “anti-vaxxers”. With this breakdown, we can see that those who do not want to be vaccinated now could well change their minds, provided that the conditions are met and their quality and effects are reported transparently.
After all of the above, it is clear that the State has the possibility of using its exceptional powers to proceed with the vaccination of the population. Nevertheless, this type of measure could provoke even greater resistance. For this reason, it is of vital importance that the competent authorities consider strategies of information, education and awareness-raising about the positive effects of the vaccine and the benefits of achieving social or collective immunity.