The law, ethics, personal choice and greater good - navigating COVID-19 vaccination

14 SEPTEMBER 2021

The law, ethics, personal choice and greater good - navigating COVID-19 vaccination

A Charles Sturt expert weighs in on the ethics, legalities and personal choice of COVID-19 vaccines and the notion of making them compulsory.

A Charles Sturt University pharmacy expert argues that while there may be conflicting ethical and legal positions, many mandatory vaccination policies permit a limited number of exceptions and exemptions for specific medical contraindications.

By Charles Sturt Discipline Lead in Pharmacy Associate Professor Maree Donna Simpson in the School of Dentistry and Medical Sciences.

There are many diseases that we can choose to protect ourselves or our families against. These include conditions that were common during childhood in the past such as measles, mumps, rubella, and whooping cough.

There were some which were more serious, such as polio, tetanus and diphtheria, and some that reflect conditions that may affect people at higher risk, such as pneumonia, influenza and shingles.

COVID-19 seems to lie in a category of its own being a novel coronavirus more like SARS and MERS.

Various forms of vaccines targeting SARS-CoV and MERS-CoV have been developed in the past, but few of them entered clinical trials and none of them have been approved by bodies such as the US Food and Drug Administration (FDA).

While MERS and SARS were categorised as epidemics, COVID-19 was identified as a pandemic, causing significant social and economic upheavals to the way that we live.

The Centre for Disease Control (CDC) identified that the Delta variant is twice as contagious as previous variants. The CDC also identified a benefit from increasing COVID-19 vaccination coverage, which will reduce spread of the virus and may help prevent new variants from emerging.

The CDC has indicated that the greatest risk of transmission is among unvaccinated people who are much more likely to get infected and to transmit the virus. This is a key issue.

If a person rejected vaccination and then caught COVID-19, that is a personal decision and a personal outcome. But if they spread COVID-19 to others and cause serious illness or death, that puts another ‘face’ on it.

Should it be the greatest good for the greatest number, then?

The legal system and considerations of ethics can each offer clarification about the freedoms, rights and duties of individuals, communities and our nation.

The World Health Organisation published an ethical policy brief in April 2021. This document identifies the significant benefits that vaccination offers to protect the wellbeing of individuals and nations, but also considers whether such vaccines could be mandated to enhance the number of people in the population who are protected and to guard the public health systems.

However, many mandatory vaccination policies do permit a limited number of exceptions and exemptions, such as specific medical contraindications.

From a legal perspective, the Australian legal framework for public health lies in both state and federal legislation. Quarantine powers are a federal matter, with other public health matters resting with the states.

Thus, it is also possible to use legal means to mandate vaccination and a legal obligation to be vaccinated is binding, much as the requirement to obey the traffic rules and to have a driver’s license.

Usually, penalties apply to non-adherence to legally mandated actions. However, even where vaccination is not mandated, failure to do so may lead to significant limitations on individuals, such as the inability to attend school or travel overseas.

As the Australian Law Council recognised, Australia is the only western democracy without a Charter or Bill of Human Rights. The implication is that there are many ‘rights and freedoms’ that Australian citizens may expect, which are not specifically protected by Australian law.

At a federal level for example, our perceived right to free speech is not protected, nor is the right to liberty, nor the right to access quality health care. Thus, ethics and law both may identify more issues than solutions.

Therefore, given the severe disease that can develop, and the ease with which it can spread, should the COVID-19 vaccine rather be encouraged, but not enforced?

Encouraging vaccination against COVID-19 seems a feasible recommendation. But given the severity of the diseases and its outcomes, could it be mandatory for some situations or groups?

Where the risk to the health of the broader community is high, it may be realistic to mandate vaccination for specific groups within the population, such as patient-facing healthcare and aged care workers. Or perhaps it might require transfer of unvaccinated personnel to a non-contact role if any were available.

Would it be more acceptable to incentivise vaccination with benefits and even financial rewards?

Would it be better to consider the good of the community as a whole and impose penalties for non-vaccination?

Might how quickly vaccinations become effective, and individuals’ preference for a particular vaccine, play a role in individuals’ decisions to accept a vaccine?

Certainly, the Astra-Zeneca vaccine was affected by perceptions of risk of rare clotting events, leading to a name change in Australia to Vaxzevria.

But did perceptions of being double vaccinated at 12 weeks after the first vaccination perhaps also influence individuals who had made the decision to seek vaccination in a situation of increasing case numbers and deaths?

On Tuesday 13 July 2021 the Australian Technical Advisory Group on Immunisation (ATAGI) released a statement on use of COVID-19 vaccines in an outbreak setting.

ATAGI recommended that while an interval between the first and second doses of AstraZeneca is between four and 12 weeks, in a significant outbreak situation, an interval of between four and eight weeks is preferred to bring forward short-term protection. In non-outbreak settings, the preferred interval between doses of AstraZeneca remains at 12 weeks.

Perhaps in a grave situation of a pandemic with the COVID-19 Delta variant, all of these may play a role at different times in protecting our communities?

Media Note:

To arrange interviews with Associate Professor Maree Donna Simpson, contact Nicole Barlow at Charles Sturt Media on 0429 217 026 or news@csu.edu.au

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