Malta has yet to take a position on a European Commission proposal to make COVID-19 vaccination mandatory across all EU member states. Vaccine programmes being rolled out around the world have provided hope for many but are causing concern and opposition among others.

How should governments and medical authorities respond and is compulsory vaccination the answer?

For some people, vaccination promises release from the fear the virus may strike them. Others fear that their refusal to accept a vaccine against COVID-19, regardless of the reason, will isolate them by labelling them unsafe to be around and may even affect their ability to earn a living.

The controversy over vaccines is nothing new. When Edward Jenner created the first vaccination against smallpox in 1796, it was initially seen as a miraculous solution to a disease that was killing millions worldwide. But it was not long before his vaccination began to attract opponents and, when smallpox vaccination was made compulsory in the UK by the Vaccination Act of 1853, the legislation only served to increase resistance.

Misinformation or distrust of vaccines can be like a contagion that can spread as fast as measles. It does not seem to matter how often vaccines are proved safe or supplements are shown to offer nothing of value. When people do not like facts, they ignore them.

Before the fall of communism, mandatory vaccination in countries within the Soviet sphere of influence fuelled distrust of intrusive government. The legacy of this mistrust is even now thought to be contributing to hesitancy about COVID vaccines in some former communist countries.

Mandatory vaccination has emerged as a possible universal weapon in the fight against the deadly coronavirus variants. Yet, the effort faces pushback and not only from militant anti-vaccine activists.

At its core, the controversy over vaccine mandates pits proponents who say they are the only way to get millions more adults and children inoculated and opponents who see them as an infringement on personal freedoms and potentially dangerous. Such opposition appears to be justified and legiti­mate under the provisions of Article 8 of the European Convention on Human Rights.

Misinformation or distrust of vaccines can be like a contagion that can spread as fast as measles- Mark Said

Residents can be lawfully required to get vaccinated as a condition of engaging in a varie­ty of activities, from attending school to going to a football game and travelling by bus, ferry or plane. That is what I would call a vaccine mandate.

So far, our government has not instituted a blanket national vaccine mandate and does not appear to have any intention to do so and it would be unclear whether it would have the authority to do so. Nor does it have the power, I dare add, to direct any department, entity or agency to make vaccination compulsory.

Yet, schools, colleges and private companies are turning to a controversial legal tool to get more people immunised: vaccine mandates. Many private businesses have also announced vaccination requirements for employees.

To my mind, private businesses should be allowed to mandate vaccines as long as they exempt employees who cannot get shots for medical reasons or because of religious belief. People receiving an ‘emergency use’ medical pro­duct, that is to say, not cleared for use by the European Medicines Agency, must be given the option to accept or refuse. This means that emergency use vaccines cannot be mandated and should be kept on a voluntary basis.

Thus, the challenge for governments and legislators is immense: how to devise an effective response to an ever-evolving threat that is taking the lives of citizens and undermining the economic and social fabric of nations. A vaccine offers the obvious solution, but should it be mandatory?

Non-vaccination can lawfully entail certain restrictions of the rights of vaccine refusers, such as being disallowed a particular benefit or refused school enrolment, not to mention being denied access to public transport or restaurants. But it can never be made obligatory.

But even if it is mandatory, punitive measures may do little to overcome the crucial issue. How would one ensure enforcement?

The law provides for the rela­tive freedom of action afforded to private companies in imposing restrictions but the same does not necessarily apply to some public services, for example, emergency departments in public hospitals.

It may also be politically convenient for the government to allow private entities to be the trailblazers. Allowing private businesses to introduce requirements to prove vaccination against COVID-19 would take the government out of the firing line for controversial decisions.

With infectious diseases, without vaccines, there is no safety in numbers. Vaccines are safe, effective and lifesaving.

Mark Said is a lawyer.

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