Posted on May 13, 2020 at 11:38 AM
Governments worldwide have responded to the Covid-19 pandemic with sweeping constraints on freedom of movement, including various forms of isolation, quarantine, and ‘lockdown’. Governments have also introduced new legal instruments to guarantee the lawfulness of their measures. In the UK, the Coronavirus Act 2020 gives the government new powers to detain individuals in order to prevent them from infecting others.
Interestingly, one measure that recent legislative changes in the UK leave off the table, at least for the time being, is the use of compulsory medical interventions—whether treatments or vaccinations. We surmise, however, that once treatments or vaccines for Covid-19 become available, there will be political interest in making them mandatory, since this may allow for the quickest and safest route out of the lockdown. In the case of vaccines, there will be a need to ensure that enough people are vaccinated to confer herd immunity. There may also be an argument for mandating vaccination of people who have contact with many others, such as teachers, retail staff and health care workers. In the case of treatments, we might hope that widespread use of anti-viral therapies will lighten the burden on the NHS by reducing the number of infected individuals who require intensive care. And there may be a need to ensure that people take the treatment even after their symptoms have resolved, to reduce their infectiousness.
From a legal point of view, there are clear barriers to compulsory treatments and vaccinations in the UK. The right of individuals with decision-making capacity to refuse any medical intervention that involves interference with their bodies is, for instance, robust and well-established in English law. This right persists even when the individual’s reasons for refusing the intervention are bizarre, irrational, or non-existent, and when the refusal would certainly lead to her death. The individual’s right to make her own medical decisions, and in particular to refuse interventions that interfere with her body, also enjoys robust protection in human rights law.
For the most part, public health law tows the line here. For example, while the Public Health Act 1984 allows a secretary of state to make regulations necessary for preventing the spread of an infectious disease, it explicitly rules out a generalised requirement to undergo medical treatment (including vaccination). This does not completely foreclose the possibility that treatments or vaccinations might be made mandatory in order to protect public health. But for this to be lawful, one of two things must happen. Either the government must make regulations that authorise such orders on a case-by-case basis, or parliament must pass a new statute that provides for compulsory treatment at a population level. The UK’s legal response to the Covid-19 pandemic has not taken either step to date.
The government’s reluctance to entertain compulsory treatment or vaccination would probably be shared by most medical ethicists. But is it justified? This is a difficult question, but we are not convinced that it is.
For one thing, it is not obvious that compulsory medical interventions would be any more ethically problematic than the restrictions on movement and association being deployed currently. Many of us would prefer to receive a safe and effective vaccine than to remain in our homes for weeks or months on end. And medical interventions might have fewer and less serious side-effects than the lockdown, with all of the economic challenges, stress, loneliness that that entails—not to mention the increased risk of domestic abuse for many. If quarantine were a drug, it’s doubtful it would be approved as safe for widespread use.
Objections to compulsory medical intervention are likely to invoke the claim that we all possess a right to bodily integrity—a right that protects us against unwanted bodily interference. This right partly explains why patient consent is normally required before a medical procedure, and why physical assault is morally wrong. And this right, many would claim, is stronger and more important than our rights to freedom of movement and association—the rights imperiled by isolation, quarantine, and lockdowns.
But this line of argument can be challenged. Philosophers often think that bodily integrity is especially important because of the close relationships between our bodies and our ‘selves’. In some sense, we are our bodies—or at least, we are intimately connected to them. We’re embodied beings. So intrusions on our bodies can feel like attacks on our innermost sphere. But we’re social beings too. Our relationships with our nearest and dearest are arguably as intertwined with our selves as our bodies. So too, perhaps, are our most cherished places. So it’s doubtful that a concern to protect the self puts bodily integrity on a higher plane than free movement and association.
And even if there are reasons to think that respecting bodily integrity is—other things being equal—more important than allowing free movement and association, when we’re comparing, say, quarantine and compulsory vaccination, it’s not clear that other things are equal. By any measure, quarantine surely involves a very severe interference with free movement and association. By contrast, requiring someone to receive a single injection of a vaccine involves at most a moderate interference with bodily integrity.
In any case, regarding bodily integrity as beyond reproach, when it comes to vaccinations and treatments for infectious diseases, seems inconsistent with how we treat the body in other domains. Mental health law allows psychiatric patients, including those with full decision-making capacity, to be treated—not merely detained—if they’re deemed to pose a risk to themselves or others; it allows for interferences with both freedom of movement and association, and bodily integrity. And Schedule 21 of the new Coronavirus Act explicitly allows for mandatory testing via an invasive swab. This is not obviously any less of an affront to bodily integrity than compulsory vaccination or treatment would be.
We think it’s time to put compulsory treatment and vaccination on the table, along with the restrictions on movement and association that are already being deployed. To be clear: we do not think that governments should impose vaccinations or treatments without due regard to their safety, effectiveness, and necessity. And exceptions would need to be built in for those who are likely to suffer side effects, and—perhaps—for those who have strong moral objections or simply prefer to lower their risk to others through other means. (One option would be for the governments could offer the choice: ‘either have yourself vaccinated, or stay at home’.) What we do maintain is that the current orthodoxy—that compulsory medical intervention crosses an ethical line that quarantine does not—ought to be challenged.