Most of the legal opinions on COVID-19 vaccines and the push for them to be mandatory focus on human rights versus public health crisis. A century ago similar arguments were made in the United States of America in the case of Jacobson v Massachusetts to challenge the mandatory administering of smallpox vaccines.
In that case the legal counsel for the client Mr. Jacobson, argued that a particular vaccination order was a violation of Mr. Jacobson’s rights which forbade the state from depriving any person of life, liberty, or property, without due process of law. The issue Mr. Jacobson’s counsel proposed for the justices to consider was whether the right to refuse vaccination was among those protected personal rights/liberties. However, the landmark ruling of the Supreme Court at that time reflected that individual rights were not absolute and held that the ordinances confer not arbitrary power, but only that broad discretion required for the protection of the public health.
Nevertheless, in the year 2020, in the case of Roman Catholic Diocese of Brooklyn, New York v. Andrew M. Cuomo, in a reversal, Justice Neil Gorsuch, criticised Jacobson v Massachusetts. Distinctly, Justice Neil Gorsuch opined that the case of Jacobson v Massachusetts was not intended to have such a broad impact on such fundamental rights as religious freedom. Earlier in his judgment he reiterated that the government could not disregard the constitution in times of crisis. The essence of the latter judgment recognised that the guaranteeing of human rights strengthen the protection of public health. As such, we believe instead of pitting human rights against public health, we should take the approach of seeing the acknowledgment, consideration and respect of human rights as essential to the furtherance of public health.
The right to consent in common law context
Lord Donaldson in the English case of Re T (Adult) [1992] 4 All ER 649 posited that “An adult patient who… suffers from no mental incapacity has an absolute right to choose whether to consent to medical treatment… This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent.” Therefore, it logically follows that a person who reaches the age of majority (being 18 years and over in most Commonwealth Caribbean territories) and has no mental incapacity can absolutely choose to consent or reject any medical treatment, without having to justify his/her choice to consent or reject the medical treatment. In this context, COVID-19 vaccines are medical treatments and it should be reasoned that under the common law an adult can choose to consent or reject the administering of COVID-19 vaccines to his/her person.
Breach of Consent as a form of battery
The Criminal Law (Offences) Act, Chapter 8:01 of the laws of Guyana, recognises battery as an offence against the person. Battery is defined by common law as the intentional or reckless application of unlawful force to the body of another person without consent (see: Fagan v Metropolitan Police Commissioner). Based on research the administering of vaccination to someone else’s person was seen as an exception to the rule of battery because of the element of consent, even if there was the application of contact resulting in harm. As such, it should be reasoned that forced vaccination without consent is a form of battery, and that those who breach consent or position an individual to be vaccinated despite that individual’s clear refusal should be liable. We accept that the lawfulness of the force is an exception to this position. However, we have observed that some employers are mandating vaccinations as a prerequisite to continued employment in Guyana and a few other Commonwealth Caribbean territories, in the absence of any specific change to the existing laws to make such mandate and its implications entirely lawful.
The right to consent as protected under personal autonomy and the Universal Declaration of Human Rights
The United Nations defines the right to autonomy as the acknowledgment of a person’s right to hold views, to make choices and to take actions based on personal values and beliefs. In our Commonwealth Caribbean constitutions there are a few fundamental rights that support the right to autonomy and consent, including the right to life and the right to freedom of conscience. In other constitutions world-wide the right to autonomy and self-determination of individuals are expressly guaranteed. It is understood that there are provisions to limit these rights such as public safety, public order, public morality or public health. However, even then, these limits must be reasonably required. Furthermore, (Micheline Ishay; The Human Rights Reader: Major Political Essay, Speeches and Documents from Ancient Times to Present, 2007) asserts that if the state were to interfere in matters of personal morality, it would be treating the plans and values of some as superior to those of others”. It is our position that the state should avoid such interference by respecting the right to consent, autonomy and freedom of choice guaranteed whether explicitly or implicitly in the our constitutions, laws both domestic and international and regulations, except where reasonably required. Alternatively, if the government were to unreasonably interfere by making COVID-19 vaccines mandatory, the government would be treating the plans and values of some as superior to those of others.
Determining what is reasonably required
To continue, what is reasonable is often what is considered fair by an objective group/body. As such, we turn to the World Health Organisation as the leading international institution in studies of epidemics, pandemics and other public health crisis world-wide. According to the (World Health Organisation, COVID-19 and Mandatory vaccination: Ethical Considerations and caveats Policy brief, dated 13 April 2021), “As mandates represent a policy option to interfere with individual liberty and autonomy, they should be considered only if they would increase the prevention of significant risks of morbidity and mortality and/or promote significant and unequivocal public health benefits…if a substantial portion of individuals are able but unwilling to be vaccinated, and this is likely to result in significant risk of harm, their concerns should be addressed proactively…” Further, the WHO purported that the necessity of a mandate to achieve public health goals should be frequently evaluated and such evaluations should be done in the context of the possibility that repeated vaccinations may be required as the virus evolves because this may challenge the possibility of a mandate to realistically achieve intended public health objectives.
A proper analysis of the WHO’s propositions in the above policy brief would reflect that mandates in this context are optional and should only be considered if they certainly result in public health benefits. In addition, there should be a system in place for the particular government’s policy position on mandates to be frequently assessed. Additionally, it is prudent for that particular government to realistically project that they would have provisions in the future for repeated vaccinations of the populace, in order for them to properly use mandates as a means of achieving public health objectives. To date these requirements have not been publicly addressed by the government of Guyana nor any other Commonwealth Caribbean territory, especially as it relates to the last requirement. To reiterate, they must realistically project that they would have provisions for repeated vaccinations of the entire populace to make these vaccines mandatory in the name of public health.
(This column is intended to address commonly asked questions about the criminal justice process for defendants. We intend to explain the roles of the various persons at each stage in this process beginning with the arrest and questioning stage and concluding with further information and resources. We will also address how long you can be held in custody and other rights and responsibilities you should be aware of. This column in no way replaces your need to personally consult your attorney-at-law or your own readings on the existing law (Prepared by Sparman and Small attorneys-at-law)
