Mandatory vaccines could face constitutional challenge, says expert

A move to make Covid-19 vaccinations mandatory could prove tough because of the Constitution, a legal expert has said.
Mandatory vaccines could face constitutional challenge, says expert

Cate McCurry, PA

Introducing mandatory vaccines could be difficult to achieve because of rights afforded by the Constitution, a legal expert has said.

David Kenny, associate professor of law at Trinity College in Dublin, said the State would have to show a “very compelling and highly evidenced” common good rationale to remove people’s decision-making rights.

Minutes from a meeting of the National Public Health Emergency Team (Nphet) revealed the issue of mandatory vaccination is to be discussed by public health experts, it emerged on Monday.

However, such a move could face huge challenges as the Constitution protects bodily integrity and autonomy and medical decision-making.

 

The Constitution also provides for strong protection for the rights of parents and guardians and children under Article 41 and 42.

While those rights are not absolute, it is possible to limit them for the common good. However, Prof Kenny said it would be challenging to do that in court.

As the virus threatens to overwhelm the health system, officials from the Department of Health are to produce a paper that will set out the relevant ethical and legal considerations.

The large percentage of people in hospital with Covid are unvaccinated, despite representing just a fraction of the overall population, giving rise to the discussion of mandatory vaccination.

Many scientists say increasing the number of vaccinated people will help reduce the number of people admitted to hospital with serious Covid-related issues.

 

Prof Kenny said the State would be expected to look into the move, as well as any “legal and ethnical objections”.

He said: “The Irish constitution presents some potential difficulties for a policy proposal like this.

“You would have to show a very compelling and highly evidenced common good rationale for taking away people’s decision-making rights in circumstances like this.

“That’s something that I think in principle could be done.

“I wouldn’t say that the Constitution is such that we could never, in any circumstance, introduce a mandatory vaccination scheme – simply that you would have to be able to show a necessity and a very strong common good that would be done with the mandate, not a good that will primarily accrue to those people.

“It would have to very much be a common welfare benefit.”

Prof Kenny said the high numbers of vaccinated people in the country could pose another hurdle should the State wish to introduce such a measure, explaining the State would have to compare the current level of vaccination numbers with how mandatory jabs would help keep people out of intensive care.

 

“They would have to show that, whatever extra percentage they think they would capture with a mandate, would be such that it would make a really marked difference to our public health outcomes in order to overcome the sort of consent and autonomy question,” he added.

“I would think that the State would want to be producing very compelling public health evidence on this. It wouldn’t be an easy legal fight for the State if there were a legal challenge and I assume there would be quite quickly.”

Prof Kenny said legislatures would have concerns about the likelihood of any move surviving a constitutional challenge.

The Government could also seek to change the Constitutional by way of a referendum, but Mr Kenny said this could take a long time.

“It would put the matter in a public debate, and we have to all consider if that is something we want to do,” he added. “It would be a challenging process.”

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