You can refuse a needle in your arm, says professor of health law Martin Buijsen. But in the vaccination campaign against corona, that individual right will have to make way for the collective goal: immunity. "You can't do that without coercion."
The date for the start of vaccination has already been set. If everything goes according to plan, the Netherlands will have the opportunity to be vaccinated against corona as of 4 January. Lawyer and philosopher Martin Buijsen would like to take part, but he fears that the cooperation of the Dutch population will leave something to be desired. We have experience with the National Vaccination Programme, which has worked since 1956. So vaccination will not be a problem this time either. "That programme has been very successful, but the vaccination rate has dropped worryingly over the years. This is because we no longer lose sleep over infectious diseases. Who still knows what diphtheria is, or TB? We have come to think that illness is a matter of choice, that if you live a sensible and healthy life, you will be fine. "But it doesn't just work out like that. Among high-risk patients, the vaccination rate against flu is 51 per cent. I recently worked on a campaign for flu vaccination among employees of nursing homes in Zeeland. Here I have the figures: there they don't even reach 20 per cent. "That makes me sceptical now that we have to think about the effectiveness of corona vaccination. We do not know how much immunity has already been built up against Covid-19, but we do know that the vaccination coverage is currently zero. It has to be very high soon, about 80 per cent."
Dutch health scientists noted last year that talks to persuade people to vaccinate were having little effect. They feared epidemics. Now we have a pandemic. Is compulsory vaccination now necessary? "Previously, only orthodox reformed people were against it, now there are many more sceptics. The debate about vaccination is a wildfire that keeps flaring up. For example, the polio outbreaks of 1978 and 1993. But I expect this fire to become even more intense now. Distrust of institutions is greater, and distrust of vaccines that have been developed in less than a year is deep. Now that the number of antivax people seems to be so large, I think it is reasonable to start thinking about forced vaccination."
The government has said that vaccination would be voluntary. And there is no obligation to do so in the Netherlands, is there?
"No, but there is a law here that imposes (re)vaccination on certain groups of military personnel. And that, whatever criteria you use for that, is really mandatory vaccination." The term 'mandatory' vaccination works like oil on the peat fire, Buijsen argues. So it's best to avoid it and think about gradations in the level of insistence on vaccination. "Even if there is supposed to be freedom of choice, there can still be sanctions for refusing to take part in a vaccination programme. Take Germany. Parents there are obliged to have their children vaccinated against measles, on pain of a fine of 2,500 euros. Otherwise, they are not allowed to attend the nursery. Staff in schools and hospitals must be vaccinated. Other European countries also work this way: you don't get child benefit if you don't participate. The compulsion is not that you are vaccinated under threat, but that your access to social services is cut off if you refuse. That's how it works in a democracy."
In public health, vaccination programmes play a crucial role. But who gets the last word? After the horrors of the Second World War, medical ethics freed themselves from paternalism and took 'respect for the patient's autonomy' as their starting point. His wishes should be leading, not those of the doctor - or of political leaders. This individualisation, says Martin Buijsen, himself a member of two medical ethics review committees, was a correction to the supremacy of the state and the dominant caste of doctors. How firmly rooted individualism is will become apparent now that every citizen must decide on a medical procedure - the vaccination. Buijsen sees the corona crisis as the 'litmus test'.
Are we now encountering the limits of individualism, now that it stands in the way of a collective goal?
Buijsen answers with a diversion. He sees countries struggling with conflicting interests. "If the state does not take care of the health of its citizens, it violates their dignity. But it does the same when it does not respect the fundamental freedoms of its citizens." The pursuit of high levels of health then breaks the deadlock. "In 1998, the European Commission of Human Rights ruled in favour of San Marino: the country was allowed to impose vaccination on all its residents, regardless of life or religion. That is where the collective wins out over the individual.
"You do retain the right of defence: I am responsible for my own integrity and I don't want a needle in my arm unless I give permission. But it is really Dutch to attach so much weight to this. In the meantime, we have made some progress. The Commission and the European Court of Human Rights have dealt with several complaints about vaccination causing illness or death. According to the complainants, this was a violation of the human right to life. But the Court and the Commission ruled that vaccinations - forced or voluntary - did not constitute an impermissible interference with that right to life."
This is where traditional rights to freedom lose out to the fundamental social right to health.
"Yes, we were used to thinking that those freedom rights meant that the state should not do a lot - should not violate your privacy or personal sphere, should not infringe on your freedom of faith and conscience. But those rights are not absolute. The correct interpretation of those rights is that the state also has obligations to do something: to care for the lives of citizens. With vaccinations, for example."
So despite the right of defence, vaccinations can be carried out.
"Yes, we can't afford to get stuck somewhere at 50 per cent vaccination due to the actions of anti-vaccinators. If we do not quickly reach 80% for group immunity on a voluntary basis, then individualism must be set aside. That is what they did in Italy with the mandatory measles vaccination. There, the vaccination rate shot up immediately.
Is this pandemic pushing us back to a more collective time?
"No, it has rather pulled off our mask of individualism. Before the summer, we kept to the distance rules like meek sheep and worked a lot at home, even though there were no sanctions. Children didn't go to grandma, not for themselves but for her. So we are much more collective than we thought. It's only when a police officer fines us that we become obstinate. "We resigned ourselves to the corona restrictions, me too, and in retrospect I found that quite amazing. The plague used to come three times a century, now corona gives us a lesson in togetherness."
That sounds warm, but the cold reality is that a corona vaccination campaign will not happen without coercion.
"It will not be without some coercion anyway. Can you imagine if staff in nursing homes were allowed to refuse vaccination, without any consequences? "So let's look at countries where they have experience with it, like Italy. And then we have to introduce a law here that makes that possible. It is already possible in the European context, there is a lot of room legally to use coercion, and if you do it right you don't violate human rights. It is allowed, if it is for the sake of public health."
This article by Lodewijk Dros appeared in Trouw on 10 December 2020. (in Dutch)
- Professor