Compulsory vaccination against Covid-19? – Doctors Covid Collective

With the summary proceedings of the Association of Dutch Airline Pilots (VNV) against KLM, the subject of “mandatory vaccination” was once again topical. Despite statements by the then Minister of Health, Welfare and Sport Hugo de Jonge that this would never happen in the Netherlands, the threat lingered like a shadow. Mandatory vaccination has already been introduced in several countries, including Austria for everyone over the age of 18, but also in countries such as Belgium and New Zealand where healthcare personnel are obliged to be vaccinated. How well are those obligations substantiated? What will it bring to public health?

Arguments for mandatory vaccination

Initially, the main argument was that everyone should be vaccinated for the others, for society. However, the argument turned out not to be that strong: none of the vaccines had yet been shown to slow down the spread of the virus and we now know that the vaccines do not have this intended effect. But wouldn’t the vaccine cause vaccinated people to shed less virus? That too has now become obsolete; Research shows that vaccinated people shed just as much virus after infection as unvaccinated people.

Then maybe vaccinate yourself? After all, the argument was that you would then become less ill after being infected. According to Jaap van Dissel, the vast majority of infected people do not end up in hospital in any case and the effect of the injection on long-term complaints is unknown. This would argue in favor of vaccinating specific risk groups. At the moment, however, there seems to be no demonstrable difference in hospital admissions between vaccinated and non-vaccinated.

Finally, something can be said about the duration of the protection: in the delta variant, the protection appeared to decrease rapidly, especially among the elderly and vulnerable, whose immune system apparently does not respond as well to the vaccine.

The other side of the coin is the number of side effects of vaccination. There is much discussion about this. The risk of, for example, myocarditis appears to be higher among young people than the risk of becoming seriously ill without vaccination. Since the massive vaccination campaign, there has also been an unexplained excess mortality. Without directly linking these to the vaccine, it is obvious to find out whether there is a possible connection.

If we take the above facts into account, can it be defended if the politicians decide to introduce an obligation to vaccinate? Not as far as we’re concerned.

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Legal Requirements for Mandatory Vaccination

When can an obligation to vaccinate be introduced under Dutch law?

  • Article 11 of the Constitution regulates the inviolability of the body.
  • Article 8 of the European Convention on Human Rights (ECHR) regulates the right to respect for private life. Only if, according to art. 15 of the ECHR, if there is a state of emergency, there may be a violation of these fundamental rights.
  • in art. 11 of the Constitution states that these fundamental rights can only be restricted under a law passed by the House of Representatives and the Senate. The ECHR also states that it must be necessary, proportional and subsidiary.
  • The Netherlands still has no formal or substantive law regulating the vaccination obligation for Covid-19. This makes it clear for now that compulsory vaccination in the Netherlands entails an unauthorized infringement of fundamental rights, namely regarding physical integrity and the right to respect for private life.

How did the court assess this in summary proceedings between the VNV and KLM? The court has stated that by requesting a corona vaccination, KLM infringes privacy (Article 8 ECHR). The provisional opinion of the court is that it has not become sufficiently plausible that the plea is proportional, nor that the requirement of subsidiarity has been met. The requirement that KLM imposes on candidate pilots to be vaccinated therefore constitutes an unauthorized infringement of their rights. The judge therefore ruled that KLM’s concern about not getting rosters around is not a reason to oblige pilots to be vaccinated.

This is an important statement. No reference is made in these preliminary relief proceedings to art. 11 of the Constitution, or the lack of a declared emergency. The judge clearly states that the importance of privacy outweighs the importance of privacy, and that there are sufficient possibilities to complete the planning.

This statement is clear. Mandatory vaccination cannot simply be demanded. That now applies to KLM, but in the health care sector, for example, there has been more talk about mandatory vaccination. The criteria applied by the court for KLM are essentially no different for other sectors.

We have previously established that a vaccination only protects against serious illness for a short time, and not at all against the spread of the virus. We now know that the earlier argument that patients/clients are not infected after vaccination is no longer valid. And by reasoning like this, there actually seems to be no sector in which a mandatory vaccination against Covid-19 can be justified. Only if a state of emergency, supported by the House of Representatives and Senate were to be declared, would the possibility arise to look at a mandatory vaccination. It takes little imagination to imagine how much resistance that will evoke. There is a large population group in the Netherlands that does not allow itself to be vaccinated for reasons of principle and a growing group with resistance to the Covid vaccine. Time will tell if more lawsuits are needed.

Abroad, there have also been several notable rulings in various lawsuits on similar issues, you will find it here.

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If the Netherlands nevertheless considers introducing a vaccination obligation against the omikron variant of the Covid-19 virus, these court decisions provide many arguments for the statement that such an obligation is not necessary, proportional and subsidiary. If there are political voices to introduce mandatory vaccination against the Covid-19 virus, then an affirmative answer to the following questions is required:

  1. Is there an emergency, laid down in an emergency law that has been approved by the House of Representatives and the Senate?
  2. Is there an effective vaccine, which has been shown to reduce the number of infections and prevent people from getting sick from the Covid-19 virus?
  3. If the answer to question 2 is affirmative, has it been sufficiently demonstrated that this vaccine is safe and have possible short- and long-term side effects been sufficiently identified?
  4. Has it been shown that vaccinating a large part of the population against this virus actually leads to herd immunity? If not, what is the likely public health impact of vaccinating the entire population?

Effectiveness and possible side effects of the vaccines

Current vaccines are ineffective at containing an epidemic, they do not prevent transmission, and they do not provide herd immunity. At best, vaccinated people become less ill for several months after being infected. This is difficult to demonstrate for the omikron variant because only few people become very ill from it. It is clear that the effect of the vaccine diminishes very quickly in any case. The fact that the vaccine was made for the first Wuhan variant may play a role in its reduced effectiveness for the various mutations of the virus.
The last word has not yet been said about the side effects, the reports are increasing about more frequent and more serious side effects than initially thought. Because the vaccine has been used for less than two years, it is impossible to speak of adverse long-term effects in any case. The assumption in advance that it will not cause any adverse effects in the long term is in any case not based on any scientific basis.

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What is now clear is that vaccination does not lead to herd immunity. In the beginning, this was an outspoken political hope, and the driving force behind the drive to get as many people as possible vaccinated. But we now know that even in the countries with the highest vaccination coverage there is no herd immunity, on the contrary, in some of those countries the number of infections is currently significantly higher than in many less well-vaccinated countries.

This also puts the ruling of the European Court of Human Rights (ECtHR) of 8 April 2021 in a different light. The Court stated that there would be a moral obligation to vaccinate because a high vaccination coverage would protect the risk groups. However, the mantra that you get vaccinated for someone else has been sufficiently undermined and is hardly heard as an argument anymore. A vaccination obligation to increase the vaccination rate is therefore no longer justifiable.

Finally, already in 2019, at the request of the then State Secretary Paul Blokhuis, NIVEL conducted research into possibilities to increase the vaccination rate: “Mandatory measures are possible in the Netherlands, but such measures cannot be expected to have a major effect, even if practice is late. see in other countries. The effects of mandatory measures appear to be particularly limited when people can rely on an exemption on the basis of their philosophy of life. Such exemptions are in line with the Dutch tradition of respect for ideological pluralism. It is likely that mandatory measures will provoke a lot of resistance, especially among groups that are in doubt or are against vaccination.”

Judith de Jong et al, Measures to increase the vaccination coverage in the Netherlands. An exploration, Nivel, December 2019: https://www.nivel.nl/sites/default/files/bestanden/1003621.pdf

Under the current circumstances, a mandatory vaccination against Covid-19 in the Netherlands does not seem feasible.

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