Promising results from Covid-19 vaccine trials emerged last week, while concern grows about the non-attendance by close contacts of coronavirus patients for testing. If a viable Covid-19 vaccine is found, will the Oireachtas legislate for mandatory vaccination?
Mandatory vaccination programmes exist in other European countries but not in Ireland. Rather than constitutional law being a barrier to this type of legislation, it might in fact support it.
Mandatory vaccinations have been under review by the Department of Health since last year due to the increasing prevalence of measles and mumps. Minister for Health Simon Harris said in a meeting of the Joint Oireachtas Committee on Health that he received advice from the attorney general on the constitutionality of mandatory vaccinations. As recently as June 23rd, the Minister confirmed in a Dáil debate that the department continued to review this advice.
The Minister cited concerns about a conflict with the constitutional right to receive free primary education, but encouraged creches and childcare providers to make vaccination a requirement for enrolment.
Given that Covid-19 is a global pandemic and applies to both adults and children, broader constitutional conflicts potentially arise.
Personal rights protected by the Constitution include the right to bodily integrity, privacy, autonomy, health, dignity, life and the right of the person. Protection of the family unit has given effect to parental rights to make healthcare decisions on behalf of their children. All of these rights are directly relevant to any legislation providing for mandatory vaccination.
Autonomy
Protection of autonomy has been held by the Supreme Court to mean that a competent adult patient can refuse medical treatment, no matter the consequences. This is a cornerstone of constitutional, medical and human rights law.
But where a contagious disease threatens public health, necessary intervention might override individual rights.
This significant exception was recognised by the Supreme Court in 1995 in relation to article 40.3. In 2011, the European Court of Human Rights made a similar acknowledgement in relation to article eight of the European Convention on Human Rights.
Autonomy and bodily integrity also underpin the fact that a patient must give consent to medical treatment. Again, the Supreme Court in 1995 suggested that, in relation to contagious diseases, medical treatment might be given without consent.
A clear message emerges that individual self-determination in respect of healthcare decisions is to be protected if the decision affects only that patient. If the decision has consequences for public health in the context of a contagious disease, a court might override an individual’s rights.
The same approach is seen in relation to the protection of parental rights. The Supreme Court in 2001 permitted parents to refuse the PKU screening test be carried out on their infant. But the court distinguished a screening test, which was not at the time mandatory in any country, from a contagious disease intervention that would be in the interest of the common good. The court noted that a public-health measure would be an exception to section 4(1) of the Health Act 1953, wherein the Act does not oblige an individual to submit herself (or anyone for whom she is responsible) to health treatment.
Constitutional rights are not absolute: express limitations on personal rights mean that rights are vindicated “as far as practicable” and protected from “unjust attack”. The Constitution sets out to promote the common good in its preamble, a concept that also acts as an express limitation on some rights.
Every individual holds a multitude of personal rights and some take precedence over others: Marie Fleming, who sought the right to die, cited her right to autonomy in support. However, the Supreme Court in 2013 held that her right to life outweighed her right to autonomy.
The State has an obligation to protect every individual’s right to life and the newly inserted article 42A strengthens the State’s obligation to protect children’s rights.
Legislation
The Supreme Court has deferred to the legislature on contentious social issues, including assisted dying. It would not be surprising to see legislation introduced in relation to Covid-19 vaccination.
If a constitutional challenge arose, strong support exists in these judicial statements that a contagious disease could potentially justify State intrusion on personal rights.
Tension between public health and personal rights is not novel. In 1965, the Supreme Court held that fluoridation of the national water supply did not infringe Gladys Ryan’s right to bodily integrity – the first case to recognise bodily integrity as a constitutional right. Fluoridation to protect the nation’s dental health was an intervention different in nature to mandatory vaccination, yet despite not relating to a communicable disease, the interference with constitutional rights was proportionate to the aim.
If legislation is introduced to implement mandatory vaccination for Covid-19, Irish courts will be well placed to balance rights with the public-health intervention in the event of a constitutional challenge or referral by the President.
Sarah Fulham-McQuillan is assistant professor of constitutional law at UCD