The Covid-19 pandemic is by far the most unprecedented global health emergency in recent history passed the 1918 Spanish Flu. It is novel in terms of its epidemiological significance, the sheer geographical spread, the speed at which it travels has baffled and surprised governments all over. This virus has challenged literally in every sense the organization of public health systems, put into reverse globalization and threatened local and international commerce in a manner even wars do not. New evidence suggests economic growth will be stunted for the next decade or more. The World Bank report of January made a warning that “a decade of global growth disappointments” awaits unless corrective action is taken. It estimated global output was on course to be 5% lower by 2025 than its pre-pandemic trend and that the growth rate at which inflation ignites is set to drop below 2% in the next decade, having already declined to 2.5% in the 2000s from 3.3% in the prior decade.
The consequences have not only been economic; the human toll of the virus is in magnitudes. Millions have lost lives since its discovery in Wuhan China in late 2019. According to The Hill, Coronavirus was now a third leading cause of death in the US after just 7 months. The very real threat of death as a result of severe symptoms of the virus drove populations into mass panic. Local public health systems were overridden in a matter of days, governments in most cases even the best resourced were finding themselves simply incapable of dealing with the virus as a health emergency, many countries were simply not prepared for the utter size of its impact.
It was clear within months of its discovery that Covid 19 was an emergency situation that warranted extraordinary measures to be adopted by governments. As a result most governments activated their emergency powers within their domestic legal systems. The prevailing scientific recommendations were that people must reduce or eliminate contact with each other, wear face masks, wash hands regularly with sanitizer and isolate and quarantine those who test positive to the virus while providing palliative care for them. Nationals machinations went into overdrive to implement measures aimed at curtailing the spread of the virus. These measures meant limitations on normal everyday life, interfering with social and commercial activities of ordinary citizens. It was at this juncture that it became clear that Covid 19 was not only a technical health emergency and purely scientific problem. Discussions around it soon became ideological hotbeds and scholarly attention was soon taking different shapes as social scientists began to explain different issues at stake. However, the real sociopolitical battlegrounds were drawn during the last quarter of 2020.
The multinational pharmaceutical companies in the US, Europe and Asia were nearing their final phases in the commissioning of vaccines employing some of the latest biological engineering technologies. The development of the vaccine itself was unprecedented, the speed at which these vaccines were developed and commissioned was novel in itself. The world was desperate to assume a modicum of normalcy after almost a year of near cluelessness. The vaccines provided a sigh of relief that things were about to get back to normal. The scientific evidence and mathematical models indicated that in order to efficaciously deal with the pandemic, it was necessary that everyone gets vaccinated. Governments in differing measures due to the sensitivity of the matter began cajoling different techniques of coercion to make people vaccinate en masse.
The message was clear, that everyone had to vaccinate in order to put to rest the pandemic, and this message proved to be a bridge too far for some quotas of society. Political battlegrounds have been drawn between the left and the right, with the right mincing their arguments with a shade of religious propaganda, misinformation and paranoia. The left seems stuck with the prevalent scientific evidence that to achieve immunity, and control over the pandemic, everyone must vaccinate and with that they are the biggest campaigners of mass vaccination.
Governments and private sector are adopting increasingly impatient rhetoric and actions against those who decide not to vaccinate. The argument by those who do not want to vaccinate is that to be coerced into a medical treatment is a violation of fundamental human rights and an unjustified intrusion into a person’s freedom of conscience. Philosophical debates have been made in defence of the position that it is against principles of medical ethics to impose treatment on someone without their consent. The essay provides a justification for mass vaccination from a legal and philosophical schools of thought providing a balanced analysis of issues at stake in the arguments and makes a critique of the current parochial view of rights and ethics which fails to appreciate the enormity and complexity of issues that render their position futile. The essay points out daring blind spots by proponents of the argument making it an unhealthy partisan attempt by religious zealots and misinformation merchants to manipulate public opinion.
Informed Consent is a principle of medical ethics. It posits that a patient must be able to consent to treatment he or she is exposed to subject to disclosure of all relevant information that is necessary to make that decision properly. It is a fundamental principle in the provision of healthcare and a standard operative prerequisite for any medical intervention. In its practicalities, the principle has proved able to transcend other moral and ethical considerations. Informed consent is not merely an important principle for its own end, it embodies values that give meaning to it. As a right it derives its essence from ideals that society as a whole deem too significant and are prepared to protect even if it means self-destruction. Informed Consent is an ethical standard predicated upon self-determination and dignity. These may further include the legal adaptation of freedom of conscience and right to information.
The proponents of non-vaccination propose that this principle is the extraordinary epithet on vaccination drive. They posit that no one can justifiably be exposed to vaccination as a medical treatment without their consent. They appear to put significance, rightfully as they should on the right to conscience. They argue that their fundamental dignity is impaired by paternalizing vaccination. The problem with the argument is that it fails to properly apportion the rightful place for the application of the principle. Informed Consent is meant to protect you from treatment you would otherwise not want or desire.
The drive to vaccinate is not an attempt to paternalize per se, stricto sensu into a treatment a fictional grandfather wants for your best interest. Immunization is meant as a mass epidemiological intervention to save lives. Covid 19 is a highly contagious respiratory illness, its primary mode of infection is through contact with someone who has the virus themselves even if they are not exhibiting any signs and symptoms. So in effect for so long as someone carries the virus in their body someone is always at danger. It appears difficult in this case to justify the morality of asking someone else’s permission to save people lives.
The intervention is based on the preservation of public health that is endangered by those who refuse to vaccinate. In essence, Informed Consent which in substance is actually right to conscience, self-determination and to some extent access to information is not relevant because in this case treatment is not in so far as being paternalistic is concerned aimed at the person being vaccinated. The real thrust of the issue is that if A does not want to vaccinate to save himself, it is OK, but he must vaccinate because he continues to endanger B and C and the state has an obligation to protect B and C who want to preserve their lives. There is a moral benefit in preserving someone who wants to be saved. There is no moral benefit endangering someone to preserve the autonomy of another.
LIMITATIONS ON RIGHTS
As indicated earlier in the essay, informed consent is merely an ethical standard the substantive value of which embodies rights and it is a universally accepted that rights are always subject to limitations. The subject of limitation of rights is antecedent to proportionality test. The principle of proportionality requires that there be a reasonable relationship between a particular objective to be achieved and the means to achieve such objective.
The doctrine has its origin in Germany in the nineteenth century. It developed as a means to curtail police powers on the basis that the state needed permission where it attempts to infringe a citizen’s right. Secondly there must be the necessity of the exercise of such power to achieve such purpose. Lastly the exercise of power must not impose burdens to other legitimate interests that are inconsistent to the importance of the objective achieved.
The Court of Appeal of Lesotho has applied the proportionality test as a derivative of the Canadian Charter of Rights and applied by the South African Constitutional Court. The test is a product of the celebrated decision of R v Oakes. Oakes involved an arrest and trial of David Oakes who was found in possession of narcotics contrary to the Narcotics Control Act. The legislation imposed a burden on Oakes to prove that he was not in possession of such narcotics for the purpose of trafficking. Oakes took issue with this to challenge the constitutionality of that provision.
The Supreme Court of Canada in laying down the test mentioned that in order to establish that a limit is reasonable or demonstrably justified there must be two central criteria. Firstly, the objective to which the measure in question was created for must be of sufficient importance to warrant the overriding the constitutionally protected right. The second criterion involves a three step process which essentially enquires into whether the measures employed to achieve that particular objective are reasonable and demonstrably justified.
This in essence involves a form of proportionality test designed to balance the interest of society or that politically legitimate purpose and those of an individual or group. First, it must be shown that the measure chosen is carefully designed to achieve that objective in issue. There must be absence of unfairness and irrationality. Secondly, even if there is a rational nexus between the measure and the objective, the measure must impair as little as possible the right or freedom in question. Thirdly, there must be proportionality between the effects of the measure and the objective.
Section 13 of the Constitution of Lesotho 1993 entrenches the freedom of conscience, this includes freedom of thought and religion, the ability to hold them and change them at will as one may see fit. However, in keeping with the rights theory of limitations employed as part of existing constitutional jurisprudence the world over, Subsection 5 of the same provision provides that :-
“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question
makes provision –
(a) in the interests of defence, public safety, public order, public morality or public
(b) for the purpose of protecting the rights and freedoms of other persons, including the
right to observe and practice any religion without the unsolicited intervention of
members of any other religion.”
It is thus clear that the exercise of conscience is subject to the larger interests that pervades individual interests. The Constitution provides for the curtailing of this freedom which forms the basis for informed consent when the defence of the state, public safety, order, morality and public health are at stake. The enjoyment of conscience has never justified putting the entire public at risk. Limitations are just as important as the substantive content of rights themselves.
LIMITATIONS ARE NECESSARY FOR THE COMMON GOOD
The attempt by the right to claim wholesale rights to conscience flies on the face of accepted philosophical justification of a state. It is only in the state of anarchy and lawlessness where every man enjoys every right as much as he wants, howsoever he wants without regard for anyone or anything.
It follows that when every man can have every right to everything without limitations then there can be no security for anyone. The Three principal contractualist agree basically on this truth, Thomas Hobbes in Leviathan (1651) says the individual gives up all his rights expect on i.e. right of defence and self-preservation to a common sovereign, social contract creates a common wealth and a sovereign (one, few, or many) contract unilateral and not binding on sovereign.
John Locke in Civil Government (1690) says Men enter into social contract to create a state to have a common agency for interpretation and execution of the law of nature. Individuals surrender some but not all the rights.
Rousseau in Social contract (1762): State results from a contract between individuals in their personal capacity and individuals in their corporate capacity. People in their individual capacity surrender all rights to the commonwealth as a corporate whole.
The link between morality and rights is shown by Feldman in Civil Liberties and Human Rights in England and Wales when he states that a commitment to any right must be based upon a belief about the range of aspirations which it is proper or desirable for people to pursue. It is impossible to justify any moral obligation on the commonwealth to advance the political interests of individuals to the peril of others.
While we are all committed to the respect of individual autonomy and determination, there are conceivable areas in which the moral and ethical interest in preserving the autonomy of one must necessarily be overridden by the interests of the larger group. One scenario where treatment without consent will be possible is that of a patient with a highly contagious and dangerous disease who refuses to be quarantined or treated.
PUBLIC HEALTH EMERGENCY
A state of emergency is an extraordinary situation that disrupts or jeorpadizes the normal functioning of a state. The declaration of state of emergency suspends the normal functions of government, alters the citizens normal behavior and may suspend and limit the enjoyment of certain civil and political rights. The basis of an emergency such as one under scrutiny is that the state may resort to measures beyond the legal system in order to preserve and protect the very state itself under threat from a novel virus. 1) the legal order may not contain a provision that provides solution to the emergency, 2) identifies a rule that appears to address the conflict, but its content or scope is not clear, or 3) identifies a solution to the emergency that seems appropriate according to the nature of the problem, but is prohibited in the system. It has been argued that the it is in fact a duty of the incumbent to resort to extra-legal measures to protect the integrity of the state.
The Constitution of Lesotho anticipates a possibility of a situation which calls for extra-ordinary measures. Section 21(1) and 23 provides for derogation from normal human right standards and an imposition of a state of emergency. Under International Human rights regime, Article 4(1) of the International Covenant on Civil and Political Rights provides that:
“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.
In General Comment No. 29 adopted in July 2001, which replaces General
Comment No. 5 of 1981, the Human Rights Committee confirms that “article 4
subjects both this very measure of derogation, as well as its material consequences, to a
specific regime of safeguards”. With regard to the purpose of derogation, the
Committee states that: “The restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party
derogating from the Covenant.”
It cannot be gainsaid that the issue of forced immunization is directly related to the protection of public health which has become an emergency of significant magnitude and thereby within the scope of permissible limitations.
The Public Health Order 1970 anticipates a designation of a communicable disease by the Minister of Health as a notifiable disease. Once this occurs the Minister is empowered to execute a range of actions that are in their nature paternalistic and aimed at the protection of the public. These actions include entering private premises, seizure of property, quarantining, isolation and limitation of movements of people, forced observations, treatment such as vaccination and criminalization of actions that endanger the public. Long before the advent of Covid 19, Public Health regime had already anticipated measures that are necessary for the protection of the public from dangerous pathogens.
The Committee on Economic, Social and Cultural Rights has indicated that member states have a core minimum obligation to ensure the satisfaction of minimum essential levels of each of the rights under the Covenant. In regard to the right to health, the Committee has stated that countries must ensure: The right of access to health facilities, goods and services on a non-discriminatory basis, especially for vulnerable or marginalized groups;
- Access to the minimum essential food which is nutritionally adequate and safe;
- Access to shelter, housing and sanitation and an adequate supply of safe drinking water
- The provision of essential drugs;
- Equitable distribution of all health facilities, goods and services.
Under the Covenant, states also possess a responsibility or obligation to respect, protect and fulfill.
The mass vaccination campaigns are aimed directly at the fulfillment of the obligation to protect which entails taking positive steps to stop someone from interfering with the provision of proper healthcare to other people. The refusal to vaccinate constitutes an unwarranted intrusion into someone health and the state has an obligation to intervene.
UNVACCINATED BECOMING A RESERVOIR FOR MUTATIONS
One of the more apparent problems with the Covid 19 virus is its ability to mutate rapidly and evade already build immunological defenses. This has been a problem and a point of great distress for epidemiologists and public health providers that it will soon render the current regime of vaccines irrelevant. The problem of mutations has been the single most contributing factor to the problem of eradication of the disease.
Scientific evidence suggests that this virus typically mutates in the bodies of unvaccinated hosts because it lives longer in them. A report from the Proceedings of the National Academy of Sciences of the United States of America indicate that an unvaccinated pool of individuals provides a reservoir for the virus to continue to grow and multiply, and therefore more opportunities for such variants to emerge.
This problem became more apparent with the advent of the new variant termed Omicron first identified in South Africa. The South African scientific community which was involved in the sequencing and identification of this new variant were unanimous in that vaccine hesitancy was the main driver of mutation because the virus was taking longer to evolve in unvaccinated people. In response to the new variant, UK quickly introduced travel restrictions to SADC Countries and SA became a herald against what it termed Afrophobia. The South African government together with the World Health Organization made calls that vaccine inequality perpetuated by the West was not helping anyone because until everyone and Africans in particular were immunized, incidences of mutation were to be expected and that would endanger everyone.
The leading scientific information is in favour of mass vaccination in order to finally lead to the eradication of this disease. It appears duplicitous that there are entire crusades against the Covax when diseases such as polio, measles, rubella, hepatitis and chicken pox are essentially eradicated due to vaccination efforts that were undertaken. There is not iota of scientifically empirical data that should discredit the use of vaccines except propaganda laced and passionate invocation of rights and freedoms.
In times of crisis, desperate times dictate extra-ordinary measures. There is nothing novel about paternalizing treatment if it is in the good of all, public health regimes have made resort to similar measures for decades. Without limitation of rights, none of us can truly be safe. Governments have a duty to preserve the integrity and lives of its citizens and doing so may have resort to paternalistic practices. Vaccines are an indispensable part of the policy to address the pandemic, which states are obliged to implement even under international human rights law.
Disclaimer: The views expressed herein are those of the author; they do not necessarily reflect the views of Selibeng.com.