If we believe that widespread lockdowns are acceptable in the face of Covid-19, then we should also believe that mandatory vaccination is acceptable. Likewise, if we accept the Mental Health Act 1983, which permits compulsory medical treatment of detained persons in certain circumstances, then we should accept that there is basis for mandatory Covid-19 in the law. These are the – rather contentious – arguments that a group of ethicists made to the UK government when it solicited evidence on the human rights implications of the pandemic.
The evidence, which was published on parliament’s website, prompted a substantial backlash. Many mistook it for official plans to make the vaccine mandatory in the UK. Others directed abuse at the academics on Twitter (the word “Nazis” was used) and one of their research departments, the Oxford Uehiro Centre for Practical Ethics, received freedom of information requests from people convinced that the government had commissioned or funded the evidence.
Full Fact debunked claims that the government was planning to introduce mandatory vaccinations. The academics also released a statement denying any conflicts of interest or that their evidence had been commissioned by the government. One of the academics, Thomas Douglas, a professor of applied philosophy at the Uehiro Centre, told me that the evidence wasn’t intended as a defence of mandatory vaccination, but was simply “suggesting that it wouldn’t be obviously incompatible with human rights law to use mandatory vaccination”.
The arguments used in the evidence, and the anger and fear it sparked, raise important questions. The UK government hasn’t indicated that it is considering mandatory vaccination, although the Health Secretary, Matt Hancock, has refused to rule it out. In Australia, where there are already some state-led incentives for vaccination, the prime minister, Scott Morrison, was forced in August to retract his comments about making the Covid-19 vaccine mandatory. This has led ethicists to ask whether mandatory Covid-19 vaccination could be ethically justified. The answer involves a complex trade-off between personal autonomy, bodily integrity and the public good.
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The ethical arguments for mandatory vaccination are typically based on ensuring the best outcome for the greatest number of people. There remain many uncertainties about what would be required to build herd immunity to Covid-19 taking into account the current crop of vaccines, but for other diseases herd immunity has been achieved with a mixture of natural and vaccine-induced immunity. Once the herd immunity threshold is reached within a population, vulnerable people who are unable to be vaccinated are protected regardless. For Covid-19, estimates of the herd immunity threshold typically hover between 60 and 70 per cent.
Vaccination rates are generally very high in the UK and most of the developed world. Outright opposition to vaccines (the “anti-vax” position), is only expressed by around 2 per cent of people in most countries. However, there is a greater number of people who are “vaccine-hesitant” (ie, who have some concerns about vaccines) and who are particularly uneasy with the speed with which Covid-19 vaccines have been developed and appoved. Surveys show that around 70-80 per cent of people in the UK would be willing to get the vaccine; in the US, this varies between 60 and 75 per cent.
If not enough people would take the vaccine voluntarily to create herd immunity, would coercing greater uptake through penalties be justified? “We have all sorts of things we do that constrain people’s liberty to protect others, but there is a debate about where the threshold is,” said Oxford University’s Thomas Douglas. The director of the Uehiro Centre, Julian Savulescu, writes that from an ethics perspective, a number of conditions should be met in order to justify a mandatory vaccination programme, including that: “there is a grave threat to public health”, “the vaccine is safe and effective”, “mandatory vaccination has a superior cost/benefit profile compared with other alternatives” and “the level of coercion is proportionate”.
Douglas has examined the third of these conditions in the context of Covid-19, looking at the trade-off between a mandatory vaccine and lockdown restrictions. In ethical terms, what do we consider more acceptable, a mandatory lockdown or a mandatory vaccine? Do we hold freedom of movement or freedom from nonconsensual bodily interference (what is known in ethics literature as the “right to bodily integrity”) in greater regard?
Douglas argues that it would be far less disruptive to our freedom to have a jab than to live in a state of indefinite suspended animation, with extreme curtailments on seeing family and friends, work and so on. He studies similar questions within an analogous criminal justice scenario. This involves thought experiments such as: would it be better to confine a violent criminal to ten years in prison against his will, or to administer a non-consensual “neurocorrective”, a drug that, theoretically, could effectively reduce violent impulses without otherwise changing the person in question?
Many of us would judge the latter to be a greater violation of the convict’s rights, even if it would allow him to live a free life outside prison. “It is taken as an assumption by a lot of lawyers and ethicists that the right to bodily integrity is somehow more fundamental and stronger than the right to free movement and association,” said Douglas. This belief stems partly from the horrific historical precedents for medical experimentation on prisoners.
Of course, this kind of theoretical trade-off is based on several assumptions. Firstly, it assumes that lockdowns themselves are ethically acceptable in the context of Covid-19 – using lockdowns as a “baseline”. For those who disagree with this, any comparison is null. The same applies for the prison example: for those who think prisons are ethically unacceptable and that a rehabilitation model should be adopted instead, the trade-off is inherently shaky.
Many have challenged the ethical basis for lockdowns on the grounds that there is not sufficient evidence that they work, that the interventions aren’t proportionate to the threat, and/or that the infringement on civil liberties is too egregious or the consequences too grave. Legal action has been taken against lockdowns in the UK, the US and elsewhere.
“Bodily integrity really goes back to questions of personal autonomy, so ‘I should only be jammed in the arm with a needle if I’ve agreed to do that with full information and consent’,” said Hugh Whittall, the director of the Nuffield Council on Bioethics. “To interfere with that autonomy to make decisions that concern my body, or my choices, has to be justified by some overarching public health requirement.”
The Nuffield Council has issued guidance advising that mandatory vaccines are only acceptable when the disease in question is extremely deadly or if a country is very close to entirely eradicating a disease. “It’s difficult to see that the current situation is one that would meet that threshold to justify an overall mandatory vaccination,” said Whittall.
The case fatality rate (CFR) represents the mortality rate among confirmed cases of Covid-19, while infection fatality rate (IFR) estimates the proportion of deaths among all infected individuals (including asymptomatic or undiagnosed individuals). When coronavirus first started spreading through China and Italy, scientists estimated that the CFR could be as high as 15 per cent. Since then, this figure has been dramatically revised downwards; for example, in England in August it was 1.5 per cent. Data from Iceland, where the most testing per capita has been carried out, suggests that the IFR could be as low as 0.03 to 0.28 per cent. A review by John Ioannidis, published in October in the Bulletin of the World Health Organization, finds a median IFR of 0.2 across 51 locations. The UK government downgraded Covid-19 from a high-consequence infectious disease in March.
[See also: Why Covid-19 vaccines offer cause for hope and concern]
Covid-19 poses a far greater mortality risk to older people, with the majority of deaths concentrated among the over-60s. In the UK, for example, the average age of coronavirus fatalities since the start of the pandemic is 82. This is in contrast to the Spanish flu, which is estimated to have killed between 50-100 million people and posed a much greater mortality risk to infants, children and adults under the age of 30 than to older adults. In England and Wales, the Spanish flu reduced the life expectancy at birth from 54 to 41 years, while in the US and Canada, mortality from the disease peaked at age 28.
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What kind of disease might qualify for mandatory vaccination programmes using Nuffield’s guidelines? Whittall cites a disease such as Ebola, which, although far less contagious than Covid-19, has an average case fatality rate of about 50 per cent.
Another dimension in the ethical debate over mandatory vaccination is whether the vaccine is safe and effective. All medical interventions come with some element of risk, and that includes vaccines. Rigorous safety trials keep the risk very low, but if a drug is administered to millions, or even billions of people (as is the plan with the Covid-19 vaccines), the likelihood of some people suffering an adverse reaction is high. A common metaphor to illustrate this is seatbelts: in the vast majority of cases, seatbelts save lives; however, in a tiny minority they can injure or even kill their wearer.
“[A] reason why I think it would be hard to justify mandatory vaccination for Covid is that we have less information about the risks than we would to justify, say, mandatory flu vaccination,” said Douglas. Although all the Covid-19 vaccines are going through safety trials, there is no long-term data available on side effects. The majority would conclude that contracting Covid-19 is riskier than taking the vaccine for it, but depriving people of making this judgement for themselves based on the available data would be ethically questionable.
Many of these questions hinge on whether the Covid-19 vaccines will prevent transmission of the disease. Trials have been designed to test whether the vaccines can effectively reduce the severity of symptoms, rather than whether they can halt transmission. Vaccine makers have said that reduction of transmission could be a side effect, but this isn’t certain yet. If a vaccine isn’t shown to reduce transmission, the ethical basis for making it mandatory is weakened.
Regardless of government mandates, some businesses have suggested they will introduce vaccine passports. The most obvious ethical quandary this presents, besides infringing on people’s freedom and autonomy, is one of discrimination. A number of groups, such as some immunocompromised or pregnant individuals, are not able to take the vaccine. There are also issues about the vaccine bottleneck. If it becomes possible to obtain the vaccine privately but not on the health service, this poses issues of access and the potential for discrimination cases against businesses.
“I think that the government needs to take a view on the extent to which that will be acceptable, because it will be potentially discriminatory,” said Whittall. If vaccine passports were contributing to “a continuing cycle of exacerbation of disadvantage, the government can’t simply stand back and say, well, that’s the market doing its job”, he said. There are other reasons not to issue vaccine certificates. “With Covid-19 there are still too many questions about the vaccine to mandate, ie, we don’t know about the length of protection and a proportion will not be protected after vaccination. Also we don’t know if it stops you transmitting the virus so a passport may give false reassurance,” said Helen Bedford, a professor of children’s health at University College London.
[See also: A Covid-19 vaccine is a remarkable achievement – but anti-vaxxers will be a problem]
Beyond the ethical issues of mandatory vaccination, there are many practical questions about the logistical feasibility, as well as the potential for unintended consequences. A number of health practitioners point out that transparency and education, as well as making the vaccine as easy to access as possible, are far preferable to mandates, which haven’t been shown to increase vaccination levels. “It’s always going to be preferable to inform people, to encourage people, sometimes to incentivise people, rather than to interfere with what would otherwise be their autonomy,” said Whittall.
There are also concerns over whether introducing a mandate or coercive measures would embolden anti-vaxxers, and dissuade those already hesitant about the Covid-19 vaccine. It’s likely that the more a vaccine is pushed, the more some will dig in their heels. The UK’s original anti-vax movement started in the 19th century as a rebellion against the mandatory smallpox vaccination, which led to riots in Leicester. “This came from a variety of angles – sanitary, religious, scientific and political,” the medical historian Dr Kristin Hussey told the BBC, “but many simply objected to being told what was good for them.”
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