Anti-vaccine : legal arguments fragile

Esbenklinker/epictura

Published the 09.09.2017 at 08h31

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Opponents of the extension of compulsory vaccination will gather this Saturday to demonstrate in front of the ministry of Health. Together under a group called ” Together for a vaccination free “, the organizers call on the authorities to reconsider their project of making it a mandatory 11 vaccines. In a press release, the association recalls three legal principles, which could be used as an argument to challenge before the courts the validity of this project.

The first relates to the Kouchner law on patients ‘rights, which states that” no medical act and no treatment can be practiced without the free and informed consent of the person and this consent may be withdrawn at any time “. The second is the Oviedo Convention, which acknowledges the “primacy of the human being” : “the interest and welfare of the human being shall prevail over the sole interest of society or science “.

Finally, the opponents refer to the order Salvetti (Italy) of the European Court of Human Rights (ECHR), which pointed out that ” as a medical treatment, non-voluntary, compulsory vaccination is an interference with the right to respect for private life guaranteed by article 8 of the European Convention of Human Rights and fundamental freedoms.” Clementine Lequillerier, a lecturer at Paris Descartes and a specialist in health law, returns on these arguments.

These legal arguments can they compromise the vaccination requirement ?

Clementine Lequillerier : They have in my opinion little chance of success. The Kouchner law lays down the principle of informed consent of the patients, who have the right to refuse care. However, certain medical acts may be imposed, including for reasons of protection of public health. This is precisely the case of compulsory vaccinations, imposed by the act and codified in the Code of public health. Criminal sanctions are foreseen in case of refusal to submit, or to submit those on which it exercises the parental authority, obligations, vaccine.

With regard to article 3 of the Oviedo Convention, I doubt that the opponents have been very successful in invoking this text. To the extent that vaccination has a benefit of both individual and collective, it seems to me to be difficult to rely on this argument.

Do they have more chances to challenge the vaccination requirement before the european courts ?

Clementine Lequillerier : It may be that they have a card to play, but nothing is less certain, and we must remain cautious. The ECHR can be submitted only after exhaustion of domestic remedies. In the case Salvetti, she considered that” as a medical treatment, non-voluntary, compulsory vaccination is an interference with the right to respect for private life “. But, she is judged incompetent and has not searched if, in the present case, such interference was justified or not.

However, the european Convention of human rights provides that there may be interference by a public authority if it is justified, in particular by questions of national security, public safety, economic well-being, protection of health… However, this is probably the argument most “solid” opponents of the obligations, vaccine, and this all the more that has emerged in the european legal order, since a few years already, the concept of ” autonomy of decision-making “.

The opponents will they be able to seize the Constitutional Council to challenge the law ?

Clementine Lequillerier : once the law is promulgated, it will be possible for the litigants, in the context of litigation, to challenge the constitutionality of the law, raising a priority issue of constitutionality (QPC). So, on the occasion of an ongoing proceeding before a court, for example, the criminal, the litigant may argue that the statutory provision providing for obligations, vaccine, and which it refuses to submit infringes the rights and freedoms guaranteed by the Constitution.

The opponents to the vaccination requirement, however, have little chance of getting successful in asserting an infringement of the right to health is also guaranteed by the Constitution. In effect, the Constitutional Council [seized by the spouses Larère who had refused to administer the DTP vaccine for their daughter, editor’s note] has already given a decision in march 2015 on this matter (1), and considered the vaccination requirement in accordance with the Constitution.

You have participated in the citizen consultation. What is the exemption clause relied on a time ?

Clementine Lequillerier : The steering Committee of the citizen consultation on vaccination, in its report of 30 November 2016, has recommended the extension of the temporary bond immunization of the child with a possibility to invoke an exemption clause (which, however, must not be confused with the medical contra-indications). This option had the advantage “a better acceptability by a party of the people” of the proposal to extend the mandatory vaccinations.

Contain such a clause, however, is not without risk. Also is this the reason for which the committee had suggested that this option be subject, if it were accepted, a regular assessment which could lead to his questioning in the case of immunization coverage, inadequate or resurgence of the infection preventable. It should be recognized, however, that to the extent that the extension of the obligations of vaccine is based on a public health imperative it may seem paradoxical (or incoherent) to allow people to invoke such a clause. Considered for a time by the government, this clause seems to have fallen by the wayside…

(1) ” In imposing these obligations of vaccination, the legislature has heard the fight against the three diseases that are very serious and contagious or not open to be eradicated “, he ruled at the time.