Compulsory Childhood Vaccination: Human Rights, Solidarity, and Best Interests

Abstract

In Vavřička and Others v the Czech Republic,1 the Grand Chamber of the European Court of Human Rights (‘the Court’) considered for the first time whether compulsory childhood vaccination can be compatible with the European Convention on Human Rights (ECHR). The majority2 found the Czech Republic’s vaccination policy to be ‘fully consistent with the rationale of protecting the health of the population’3 and within the wide discretion (‘margin of appreciation’) given to Member States on health issues.4 The policy struck a fair balance between the protection of children against serious diseases and the protection of families from the consequences of refusal. Dissenting Judge Wojtyczek agreed that mandatory vaccination can be Convention-compliant but argued that the facts did not support such a conclusion in this case. He thought that the majority’s consideration of the public interest did not give adequate weight to the best interests of individual children, as opposed to the interests of children in general, or to the particular risks, costs, side effects and benefits5 of each vaccine as opposed to the ‘general consensus over the vital importance of this means of protecting populations against diseases’.6 Filed before the COVID-19 pandemic, the case will be of broad interest given the long-term political and legal debate around compulsory childhood vaccination. Whilst the UK is one of several European countries7 which maintain a voluntary vaccination programme, a growing number impose restrictions on voluntariness.8 Moreover, there is emerging evidence of a link between mandatory vaccination and a higher uptake of vaccinations and reduction in disease.9 We explore the reasoning in the judgment and its implications for children’s rights and in the debate around COVID-19 vaccination. In the Czech Republic, the Public Health Protection Act 2000 and an implementing ministerial decree require childhood vaccinations against nine diseases.10 If parents do not comply without good reason, they commit an offence and may be subject to sanction. The first applicant, Mr Vavřička, was fined when he refused to have his 14 and 13-year-old children vaccinated against poliomyelitis, hepatitis B and tetanus as required by the State. The domestic courts dismissed his appeals. The other five applicants refused some or all of the nine vaccinations, resulting in their children’s exclusion from preschool. The Novotnás, for example, declined the measles, mumps, rubella (MMR) vaccine for their daughter, who was consequently refused admission to preschool on the ground that she posed a health risk to the other children. Their challenge in the domestic courts was also unsuccessful. The Chamber relinquished jurisdiction to the Grand Chamber of 17 judges due to the serious and controversial nature of the questions raised. Several governments11 and non-governmental organisations were given leave to intervene. Some of those governments (notably France, Poland and Slovakia) also restrict voluntariness. Indeed, the Court noted a European trend towards mandatory vaccination ‘due to a decrease in voluntary vaccination and a resulting decrease in herd immunity’.12 The Court did not consider there to be ‘any appearance of a violation’ of Articles 2, 6, 13 or 14 of the Convention.13 Nor was there found to be a breach of Article 9, which protects the right to freedom of religion and conscience. Most of the judgment is given over to the potential violation of Article 8. Article 8 is a right in two parts. To show a violation, Article 8(1) must be engaged, and there must be no justification under Article 8(2). Article 8(1) states that ‘Everyone has the right to respect for his private and family life, his home and correspondence’. Previous judgments of the Court make clear that compulsory vaccination constitutes such an interference,14 and the Court accepted that this was so in Vavřička.15 Article 8(2) qualifies the Article 8(1) right. This means that public authorities can interfere with the right where it is justified on the basis that it is lawful, pursued in accordance with one of the legitimate aims set out in Article 8(2) (which include inter alia the protection of health and the protection of others), and is ‘necessary in a democratic society’. Applying Article 8(2), the Court found there was no violation of Article 8. It was ‘in accordance with law’ because it was based on accessible domestic law, which made the requirement and penalties for non-compliance clear.16 It followed a legitimate aim because it protects the health and the human rights of others: the objective of the relevant legislation is to protect against diseases which may pose a serious risk to health. This refers both to those who receive the vaccinations concerned as well as those who cannot be vaccinated and are thus in a state of vulnerability, relying on the attainment of a high level of vaccination within society at large for protection against the contagious diseases in question.17 The requirement of necessity merits further explanation. An interference with Article 8(1) is ‘necessary’ to achieve a legitimate aim (the protection of health and the protection of others, in this case) if it answers ‘a pressing social need’ in a manner proportionate to the legitimate aim pursued. The Court recognised a wide margin of appreciation in relation to health issues, particularly those involving ‘sensitive moral or ethical issues’, such as compulsion.18 The Court accepted that: there is a general consensus … that vaccination is one of the most successful and cost-effective health interventions and that each State should aim to achieve the highest possible level of vaccination among its population …. Accordingly, there is no doubt about the relative importance of the interest at stake.19 The value of childhood vaccination rendered compulsion an acceptable mechanism in answer to a pressing social need, particularly in the light of the positive obligation of States to protect citizens’ lives and health.20 As we shall explore below, it was pertinent that children’s collective and individual best interests21 ‘are of paramount importance’.22 Also relevant to establishing that an interference is ‘necessary’ is the proportionality of the action to the legitimate aim pursued. Proportionality was of central importance in Vavřička. It was assessed in relation to the particular facts in the various applications before the Court rather than in a wider abstract sense.23 Relevant factors included (inter alia) the limited number of vaccines mandated (nine), the exemptions that apply with respect to contraindications and conscientious objection,24 the nature of the compulsion which does not force compliance if people are willing to accept the fines and limitations on preschool provision,25 the effectiveness of the vaccinations in question,26 the availability of adequate compensation,27 and their safety record.28 Regarding the last of these, the Court heard that out of 100,000 children vaccinated annually in the Czech Republic, there were five or six cases of serious adverse effects.29 They are rare but serious, and so the Court reiterated30 the importance of taking precautions before vaccination. Precautions include checking for contraindications in each case and safety monitoring. In the case before it, the Court accepted that national methods kept the vaccines ‘under continuous monitoring by the competent authorities’.31 The Court also considered the nature of the penalties imposed for non-compliance. The fine was not excessive and did not impact on Mr Vavřička’s children’s education.32 With regard to the other applicants, it was accepted that the refusal of a preschool place impacted the opportunities afforded to the young children, but this ‘choice’ could be avoided by accepting the legal duty to vaccinate.33 The Court considered that the impact was time-limited, and the parents in the cases before the Court were able to ensure their children’s development in other ways. In sum, invoking the argument of a duty of easy rescue,34 which applies when the cost of acting is minimal and the benefits to others are significant, the Court said: [I]t cannot be regarded as disproportionate for a State to require those for whom vaccination represents a remote risk to health to accept this universally practised protective measure as a matter of legal duty and in the name of social solidarity for the sake of the small number of vulnerable children who are unable to benefit from vaccination.35 As is evident from this quotation, the Court endorses the basis of the Czech Republic’s compulsory vaccination policy: 36 Solidarity towards the most vulnerable.37 Submissions from the German Government also emphasised the principle of solidarity in the formation of their policy, which requires proof of measles vaccination, immunity or evidence of contraindication as a prerequisite for enrolment in schools, subject to a penalty of EUR 2,500 and exclusion from educational institutions:38 Compulsory vaccination aimed to protect not only those vaccinated but also society as a whole and, in particular, vulnerable persons who cannot be vaccinated themselves on account of their age or state of health.39 The appeal to solidarity is interesting. It has one of its most obvious applications, as here, within the public health context. When we return to the context of the United Kingdom, however, the principle of solidarity is less familiar. It also needs to be carefully distinguished from other notions, such as those of reciprocity and justice. Hence, the claim is not that it is fair to distribute the burdens and benefits of vaccination in a certain way, nor that the vaccination of some is owed in reciprocity to those vulnerable to disease. A helpful definition of solidarity that does distinguish it from these other terms is given in the Nuffield Council on Bioethics Report, Solidarity: Reflections on an Emerging Concept in Bioethics, where it is stated to be ‘shared practices reflecting a collective commitment to carry ‘costs’ (financial, social, emotional or otherwise) to assist others’.40 As the Report makes clear, solidarity is both a description of the nature of certain practices and a prescription of these as ideal. In other words, solidarity characterises what is valuable about certain social forms and what is needed to maintain their valued character. In simpler terms, solidarity is about all being in it together and, as a result, all being prepared to share the burdens of a collective enterprise. On this account, immunising children against infectious diseases is justified because this ensures that everyone—all children and, indeed, the rest of society to which any child belongs—benefits. This is not best understood as being about balancing individual and collective benefits and burdens. Instead, it is about protecting what matters in our society: that we are all bound together by shared ties, and everyone must play their part in maintaining those ties. Solidarity is an important ideal and has had noticeable appeal in the current pandemic, where the need to secure high levels of vaccine take-up across society is pronounced. Judge Wojtyczek, however, points out that the case for social solidarity as a justification for mandate is most robust in relation to infectious disease. It is less relevant to tetanus, one of the nine mandated vaccines in Vavřička, which is not contagious and where vaccination has no bearing on herd immunity. Solidarity is not wholly irrelevant as long as tetanus remains a public health issue41 and as long as the goal extends to solidarity between countries with the aim of reducing global health inequalities. Nevertheless, this was not explored in Vavřička, where solidarity is inadequately defined. Moreover, the ideal sits oddly alongside any talk of interests and rights when these are understood in terms of what each individual, considered in isolation, may lay claim to. Indeed, it is hard to see how one might justify the compelled vaccination of children by appeal both to solidarity and to the best interests of the child, especially if the latter is understood to be paramount. In Vavřička the Court said: It is well established in the Court’s case-law that in all decisions concerning children their best interests are of paramount importance. This reflects the broad consensus on this matter …. It follows that there is an obligation on States to place the best interests of the child, and also those of children as a group, at the centre of all decisions affecting their health and development.42 The decision is based on both the collective and individual interests of children. The Court speaks of the best interests of children being of paramount importance, but refers in the same paragraph to Article 3 of the United Nations Convention on the Rights of the Child, which says ‘In all actions concerning children … the best interests of the child shall be a primary consideration’ (our italics). Dissenting Judge Wojtyczek found this aspect of the majority judgment problematic. He argued that: [T]he central question around the best interests of the children is not whether the general health policy of the respondent State promotes the best interests of children as a group, but instead how to assess in respect of each and every specific child of the applicant parents ... whether the different benefits from vaccination will indeed be greater than the specific risk inherent in it.43 Yet, as is public health where what is at is the of to ensure the good health of a population rather than a cannot be rendered in the terms of the of between such as a and or and matters to such is whether the or to the and what is is the value of individual In the case of a young child, there can be no appeal to their children are not of such a child is not competent to parents and the make decisions on their taking the the what is is what is in the best children, their to if they are competent to do In and the a to competent children’s decisions to protect their best at where the decision or at A to a competent refusal of has recognised in the but is in Applying these general to childhood interests we should account of is It can each and every individual child, or it can the children as a collective In a public health what matters is the good of the the population as a This is the case with against infectious disease. the must be in place for a to be what is what a vaccination to to be vaccinated with population immunity In this it does not to in terms of individual of as well as the balance of and benefits to the population as a are also the majority in Vavřička, this particular child is in their interests and also in the interests of all children, in as as a vaccine both protects against the relevant and to Indeed, if a vaccine does the a child indeed all the interests of who might the if our is a public health and we should account of the balance of and benefits across a whole each child is not justified by its being in their best interests being the we cannot that the best interest of the individual child is paramount where that means of greater weight than other as we have ethical of and of the of a interests are relevant and In and parents can vaccinations for young children. In about child vaccination between those with the must consider each child with his best interests as the paramount In such the courts have recognised that vaccination against the of a but with of or the child is in the is not a disproportionate breach of the Article 8 rights of the or the the courts have found in each case that vaccination is in the best interests of individual In a Court of decision said: vaccinations are not the evidence that it is in the best interests of children to be vaccinated in accordance with Public Health there is a specific in an individual Public Health a collective of the interests of children and on their can the collective interests of children the consideration of the best interests of the particular In what is childhood vaccination was no in Vavřička because the children in each of the cases were not against their the parents were about the penalties The Nuffield Council on Bioethics Report on Public a the various a Government might to a public health goal should be from the to the most The the and the higher the the greater the required justification of the Public health it further should the means to achieve the required public health the public benefit of a vaccination is population immunity. a collective benefit can be if the benefit to each vaccinated individual is or If the public benefit can only be if of children are the question of what to ensure that this are proportionate and justified being the The question as young children cannot give their to being and in and their best interests are argued to be paramount. Proportionality was central to the but Judge Wojtyczek that greater should have given to the availability of less the Nuffield Council on Bioethics Report in that that and those that nor but and to In Vavřička, were in both the to have their children vaccinated and the children a to This latter on the child by and on the by their children’s educational but the Court said: that was the of the made by their parents to to comply with a legal the of which is to protect in particular in that age The to a child is by the to the who are consequently not to the of Indeed, on this account, the balance of and benefits the The parents who not to their child have their freedom to make decisions for their Yet, no jurisdiction and no can to do what their the Court’s of a wide margin of appreciation and limited on less the justification of the Czech policy in Vavřička does not that could breach the Article 8 rights of children or The Court on the of compulsion rather than the but only because those effects were limited in the cases before This can be with justification of the controversial to require vaccination in where it was said: When vaccination is of as it is only in case a child is not vaccinated as by law, a penalty is imposed which may be followed by and The to this penalty no doubt in cases to vaccination where it be whether the penalty is or it does not vaccination in all If a is to the his child remains …. could be made compulsory only by taking the child from the and it against his if he not or to its The effects of have the potential to the proportionality those who cannot the fine or for whom be without might be compelled in that those with greater some limitations on may pose only an interference with for example, of uptake is by rather than not a child does to serious to the child, the justification of childhood vaccination cannot be only in these as we have what does justify the of children is the fair of and benefits across a whole children from is in the interests of all and not the best interests of the child with The proportionality of is pertinent in the debate over COVID-19 In the vaccine out in not how we do We do by the Government a which will in The potential for of and will be relevant to as will the on that from vaccination to to and children be required to COVID-19 It is the first children to receive COVID-19 vaccination will be and so in the will be competent to their to vaccination. children and young will be children, both the risk of vaccination and the risk of COVID-19 is about the and of what is is the between the justification for childhood vaccination, which is clear and and the limited for the and both and long-term safety of all the individual COVID-19 vaccines in and indeed for the last of these in have in some COVID-19 vaccines that On a of vaccine in some countries for childhood it will be to see whether the to the pandemic, both for and in the vaccine is is whether the of COVID-19 will higher in the population without national If this and their parents may have a claim to vaccine and be willing to accept any of vaccine and have argued for mandatory COVID-19 vaccination in all children. They that it is in children’s individual and collective interests to receive COVID-19 the duty to the child, the duty of easy the duty to protect child by children from the and effects of and this argument is by the current of evidence for safety and in for example, the which is not mandated in countries in child definition is is not the its such State over citizens’ in terms of the of their and has the pandemic, which might public of any of vaccine children the to for is Judge Wojtyczek, in his argued that parents are in the best to children’s best In countries such as the United that a voluntary vaccination policy, the on rights to is in the case of v for example, to to interfere with decisions about their children’s and in said: [I]t is a principle of family in this jurisdiction that for decisions about a child rest with his In most the parents are the best people to make decisions about a child and the State whether it be the or any other public has no with the of the child is or is to as a of the given to the child not being what it be to a to Whilst in and about have thus in of vaccination on the basis that this is the that is in the best the decision in Vavřička that the to State mandate is but a small Indeed, it is an the UK Government was before the Vavřička will impact on the of It has a on solidarity that is in the United and which It has individual best interests with the collective interests of In particular, this judgment the that best interest must be considered should be understood both as the individual child and as the collective of all children. is in the interests of the child who is vaccinated and all other children who benefit from the general of a there are of compulsion and should and be and might proportionate and the COVID-19 has the and impact on in the of an Whilst the has not vaccine it has the potential of vaccinations to and social We the support of the which has two of the in a on ethical and in the pandemic,