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Mandatory Vaccination: The power of “Consent”

CATEGORY: HUMAN RIGHTS

Mandatory Vaccination: The power of “Consent”

Nowadays, more frequently than ever, the concept of “involuntary medical intervention” is discussed in both the medical and the political world globally. The Covid-19 pandemic, as characterized as such from the World Health Organization, raises issues, fears and questions to the general public that they will be subjected to medical interventions, such as vaccinations, without their will and consent.

THE LEGAL FRAMEWORK ON PATIENT’S RIGHTS IN CYPRUS

Since every government follows a different policy, through this Article we will focus on the relevant legislative framework in Cyprus. The “Law for the Establishment and Protection of Patient’s Rights (1(I)/2005)” (hereinafter “the Law”) was enacted in 2005 and has not been amended since. In the Preamble of the Law, it is stated that it is extensively based on International Conventions in which Cyprus is a party, on the Declaration on the Promotion of Patient’s Rights in Europe (March 1994), on the European Charter of Patients’ Rights (November 2002) and the Charter of Fundamental Rights of the European Union (December 2000). Article 3 of the Law, explains as well that the provisions of the Law are supplementary to the provisions of the previously stated legal instruments.

Article 2 of the Law, defines “patient” as a natural person who suffers from any illness or condition or any natural person who asks for or receives health care. In the same Article, “medical emergency” is deemed to be an incident which directly threatens the life or may result in severe incapacity in case health care is not provided immediately.

In the Declaration on the Promotion of Patient’s Rights in Europe, the definition of “medical intervention” is any examination, treatment or other act having preventive, diagnostic, therapeutic or rehabilitative aims and which is carried out by a physician or other health care provider.

MEDICAL INTERVENTION WITH THE PATIENT’S CONSENT

Article 11 of the Law, states that the patient’s consent is a prerequisite for medical intervention and care. The patients must be well informed in a timely manner for the relevant health care that they will receive, along with any associated risks, discomforts, side-effects and alternatives, in order to decide freely and without any external influences whether they will be subjected to a medical intervention or treatment, or not.

In the same Article, it is also mentioned that in case of “innovative therapies”, patients shall be fully informed and provide their written consent.

In Article 4 of the European Charter of Patients’ Rights, which refers to the Right to Consent, it is provided (among others) that health care professionals must give the patient all information relative to a treatment or an operation to be undergone, including the associated risks, discomforts, side-effects and possible alternatives. This information must be given with enough advance time to enable the patient to actively participate in the therapeutic choices regarding his or her state of health.

In the Declaration on the Promotion of Patient’s Rights in Europe, it is established (in addition to the above) that the patient has the right to refuse or to halt a medical intervention. Of course, the implications of refusing or halting such an intervention must be carefully explained to the patient.

MEDICAL INTERVENTION WITHOUT THE PATIENT’S CONSENT

Article 13 of the Law enumerates the instances where medical intervention and treatment can be provided without obtaining the patients consent:

(a)    When the patients are in no condition, physical or mental, to express their will BUT it is urgent to proceed with medical treatment, their consent is taken for granted, UNLESS it is apparent from previously expressed preferences that they would refuse to receive such treatment.

(b)   When the health care provider decides on his own judgement in medical emergencies that medical treatment is for the benefit of the patient.

(c)    When it is impossible to receive the patients’ consent, but their previously stated preferences constitute implied consent to the upcoming treatment.

When the patient is a minor, consent is given by its parents. In case where the parents refuse to give their consent and the health provider believes that the medical intervention or treatment will benefit the minor, the matter is referred to the Court or any other instrument with decisive power, provided that there is enough time for this procedure.

MANDATORY VACCINATION

In the light of the previous analysis, we are now called to answer the main question: Is mandatory vaccination legitimate and allowed in Cyprus?

Firstly, it should be noted that vaccination falls within the scope of medical intervention, as a medical act with a preventive aim. Therefore, as such, consent is essential for proceeding with the vaccination of a physical person, followed by adequate information on any associated risks, discomforts, side-effects and alternatives.

The intermediate question arising at this point is, does vaccination falls within the instances where medical intervention is allowed without the obtainment of the patient’s consent?

Since vaccination is a preventive measure, it is almost impossible to be connected with a “medical emergency”. Urgent medical occurrences constitute the cornerstone for proceeding with health care without receiving the necessary consent, and the lack of such emergency in the concept of “vaccination” leaves no room for a different interpretation.

The only “blind spot” lies on the potential mandatory vaccination of minors. Article 13(4) of the Law permits physicians or other professionals who are convinced that a medical action will benefit the minor, to refer the matter to Court or other instrument, in cases where parents do not grant their consent. This specific section does not include “medical emergencies”. Obviously, the level of protection is higher for minors, possibly in order to establish that they are well protected by the law and not fully relied on their parents decisions. On the other hand, it is easily noticeable that the final decision for minors depends on a Judge, namely a person who is not a physician, a fact that raises concerns about the effectiveness of the provision and the sufficiency in the protection of the minors.

To summarise this section, mandatory vaccination is not allowed in Cyprus and is not even permitted from the previously mentioned international and European instruments, as far as adults are concerned. For minors, the letter of the law may allow for mandatory vaccination providing that a Court decides affirmatively on the matter.

FINAL THOUGHTS

It is hardly acceptable that in 2020 the legal framework on patients’ rights and protection is the same as it was in 2005. Even the European and international legal instruments on the matter, have not been updated for decades. Manifestly, the lack of amendments or modernization of the Law, reflects the fact that medical care and its relevant aspects do not constitute a priority for the Government. One can say that is it also an indication of the general unpreparedness for the unexpected corona virus.

It is true that the unprecedented challenges we are facing, require unprecedented measures. Nevertheless, it should be borne in mind that if the government opts for mandatory vaccination, there is no solid legal background to support such choice.

Authors: MARIA LAZARIDOU 

 

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