When can you infringe on someone's physical integrity?

André den Exter, Associate Professor of Health Law at Erasmus School of Law, was a guest at Studio Erasmus, where he discussed involuntary care. Since January 2020, the Compulsory Mental Health Care Act makes it possible to provide involuntary care to vulnerable patients in mental health care in exceptional cases. Den Exter discusses in which cases this involuntary care can be provided and highlights the differences between this involuntary care and the (corona) vaccination obligation.

What is involuntary care?

Den Exter explains that in the case of involuntary care, care is provided against the will of the patient. This may concern the administration of medication, admission, entrapment, undergoing a medical check-up, as well as the taking of objects, such as a telephone. Den Exter makes it clear that the provision of this involuntary care stays an exception: “It remains the most extreme violation to the human body.”

For that reason, strict requirements must be met, which have been registered in the Compulsory Mental Health Care Act since January 2020. Among other things, a care institution must apply for authorisation from the court in every case where it wants to provide involuntary care. In each case, the court assesses whether certain criteria are met, such as necessity, proportionality, and efficiency. The most important criterium is that there must be a serious disadvantage, which can be linked to the psychiatric disorder. By serious disadvantage is meant that there is a considerable chance that someone could harm himself or someone else. If the case complies with all criteria, the judge grants the care authorisation. Since the introduction of the law, there have been eight cases in which authorisation was granted

Involuntary care and vaccination obligation

Den Exter explains that a vaccination obligation is different from involuntary care: “A vaccination obligation does not involve coercion. It's not like you are grabbed against your will and vaccinated by force. That is an important difference. Even if people are refused entry to cafes, restaurants, or even their workplace because they have not been vaccinated, there is still no question of coercion. It feels like coercion, but formally you still have a choice. You also see this happening in France and Austria: you still have the choice to be vaccinated or not, and if you choose not to, you pay a fine. "

When asked whether there is a chance that (specific groups of) people will be forced to be vaccinated in the future, Den Exter answers that he does not see this happening any time soon. “Lawyers do indicate that if the legal basis is there, it is in line with European law. However, you really need a legal basis because you are infringing fundamental rights. And even then, it is only possible under the conditions that [forced vaccination] is necessary, proportional, and effective. This still remains to be determined”, according to Den Exter.

Although Den Exter does not expect vaccination obligation to happening quickly, he does believe that the pressure on the Dutch population to be vaccinated can be increased step by step: “You start with face masks, but if that seems to work insufficiently, you can go further and further. In that case, an option would be, for example, the 2G measure that is currently being considered by the government.”

Collective awareness and the importance of physical integrity

According to Den Exter, collective awareness also plays a role in the fight against corona. He compares the situation in the Netherlands with the one in Italy, where he is a guest lecturer at the University of Bologna. There, many corona measures have been introduced and are effectively enforced and obediently followed, also within the education system. And according to Den Exter, nobody has a problem with that. “This is partly due to past events in Bergamo and other areas in Italy. Everyone there saw how the army trucks drove to the crematoria. The situation was that bad. That does indicate that the collective awareness is much more developed there”, says Den Exter.

Finally, the importance attached to physical integrity in the Netherlands plays a partial role. According to Den Exter, “this integrity is crucial, but circumstances can arise in which the public interest, and especially the collective health interest, justify infringements of these rights.” According to Den Exter, the collective health interest currently seems to play a minor role in Dutch society: “In particular, individual autonomy and freedom of choice is more the norm than it should be an instrument to serve the health interest because that is primary. That must be the foundation.”

Associate professor
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View the fragment at Studio Erasmus here (in Dutch)

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