With recent news reports suggesting that the implementation of a ‘vaccine passport’ scheme is underway, questions have arisen surrounding the issue of an effectively mandatory vaccine. With a ‘vaccine passport’ potentially required to travel and partake in social activities, where does Irish law stand on the subject of proof of vaccination in the context of the right to bodily integrity?
It is important to realise from the outset of this discussion that the concept of mandatory vaccinations is not some new-fangled draconian state measure. This system is currently in place across many EU member states. Italy and France, for example, have made the rubella vaccine mandatory for children. This is but one example of many mandatory vaccine schedules across the EU.
While Ireland has not yet implemented any form of mandatory vaccination schedule, it is interesting to turn to the Constitution and the opinion of the courts to see if this is something that could be lawfully undertaken by the Oireachtas.
Two issues arise in relation to constitutional rights here. Firstly, we have the provisions for personal rights under Article 40 and secondly, provisions for the rights of the family under Article 41. Article 40 provides for the personal liberty and vindication of every citizens rights, with Article 40.3 acknowledging the State’s duty to respect personal rights in the enactment of its laws. Article 41.1 recognises the rights of the family as a unit with children’s right inextricably tied to the family. Article 42A however empowers the State to intervene when it is in the best interests of the child.
Turning first to mandatory vaccination in the context of personal rights. Let’s look back to the seminal case of Ryan v AG, where a woman protested the addition of fluoride to water supplies. While this case gave way to recognition of the unenumerated right to bodily integrity, the subsequent case law was incredibly apprehensive to freely vindicate such a right, placing heavy emphasis on legislative intention.
Following this case law to 1995 in Re a Ward of Court, we see a prime example of the weight given to bodily integrity by the courts. It is not the specific facts of this case that are of concern but rather an important statement made by Hamilton CJ; ‘Medical treatment may not be given to an adult person of full capacity without his or her consent. There are a few rare exceptions to this e.g., in regard to contagious diseases or in a medical emergency where the patient is unable to communicate.’
This statement of the Supreme Court may be construed to mean that in an emergency such as the ongoing Coronavirus pandemic, the Oireachtas may be able to pass legislation for mandatory vaccinations despite constitutional provisions for personal rights.
Taking this line of judicial reasoning further we have the case of Fleming v Ireland. Here a terminally ill woman was refused the right to die. The Supreme Court held that a complete statutory ban on an individual’s autonomy could be justified if there was a strong justification for doing so. Combining this with the statement of O’Higgins CJ, what we have is the possibility that the mass outbreak of a contagious disease could be a strong justification for a legislative restriction on autonomy.
So it has been established that such legislation could be enacted against personal rights, but what about the rights of children who are unable to give informed consent? The traditional position is highlighted in the ‘Heel Prick Test’ case. Here parents refused to allow their child to undergo the PKU test which takes a small amount of blood to test for certain diseases when a child is born.
While the court in this case did not agree with the decision of the parents, they had the constitutional right to make such a decision on behalf of their child. So the question is, would this principle extend to the distribution of a mandatory vaccine? Article 42A gives the State the power to intervene in family life where it is in the best interests of the child. It is likely that this power would be applied in relation to the distribution of the vaccine for the benefit of the child’s health and safety.
As well as this, looking at the judicial reasoning taken in the cases mentioned above, it is not unreasonable to assume there is a possibility that the legislature may also be able to restrict Article 41 rights with a strong justification for doing so.
After consideration of judicial comment on this topic and the already established ability of the Oireachtas to create legislation restricting autonomy, it seems plausible to assume that a mandatory vaccination programme could be legally implemented. The benefits of the vaccine for society at large far outweigh the principled argument of personal liberty in this case. The vaccines available at present have met all testing and safety requirements set out by the EU and so the contemplation of a mandatory vaccination programme seems to carry more benefits than risks in tackling the ongoing pandemic.
Louise Kennedy – Law Columnist