Vacunación de niños, Vicente Borrás Abella (1900) / Public domain
“Vaccine hesitancy” is an emerging and complex phenomenon which requires effective leadership from the public health authorities. It has become necessary for Administrations on an international and national level to deal with this public health challenge.
There is some confusion among citizens regarding the definition of what is medicine based on knowledge and scientific evidence, and what is not. There are many people who believe that some so-called natural treatments intended for health purposes are effective despite not being backed up with knowledge or scientific evidence to support their efficacy and safety. This breeding ground has fed the phenomena of “vaccine hesitancy”.
Pseudo therapies involve a real risk that has a direct influence on the protection and restoration of health. It is shown that these therapies favour the delay or replacement of conventional treatments (such as vaccines). This puts the health of the population at serious risk. This is even more critical when it affects minors (for example school children).
In this respect, I would like to present a leading case that opened a legal, ethical and political debate in Spain on the right to health and “vaccine hesitancy”, not only from an individual perspective but also from a collective perspective. This case occurred in 2010 in a state school in a neighbourhood of Granada (Spain). Dozens of schoolchildren contracted measles due to the refusal of some parents to immunize their children. They chose instead to use “natural” methods to protect their children’s immune system.
Vaccination of minors is not mandatory in Spain: with recommended systematic vaccination schedules, there are high rates of immunization (herd immunity). But when these levels decline, it leads to a real risk of contagion and, therefore, a true epidemic risk for the school community in a territorial area. As a result, making vaccination obligatory can be an ethical and constitutionally acceptable option.
In this case, school children’s right to health protection prevailed over their right to physical integrity. Following the request by the Health Administration to adopt measures to curb the epidemic outbreak, a judge had to order the forced vaccination. (See the Judgment of November 24, 2010, of the Contentious-Administrative Court, no. 5, from Granada, confirmed by Judgment of July 22, 2013, of the Superior Court of Justice of Andalusia, Contentious-Administrative Chamber, Granada)
Only a judge was able to enforce this vaccination. The judge’s decision was made after considering that there was a clear threat to public health, of which the Administration had warned, and it was serious enough to require the restriction of the school children’s right to physical integrity (had this not been the case, mandatory vaccination would not necessarily apply), as well as the parents’ freedom of choice (free will) while at the same time ruling out any possible medical side effects for these minors.
This case is the first, since the Spanish Constitution came into force (1978), that directly addresses mandatory vaccination and it clearly shows how the Spanish judicial process interprets human rights standards when facing the control of infectious disease, in particular, when the health of the vulnerable population (in this case minors) is in danger.
1. José Francisco Alenza García, ‘La vacunación obligatoria de los ciudadanos y el deber de vacunar de la Administración’ in José Francisco Alenza García & María Luisa Arcos Vieira (eds.), Nuevas perspectivas jurídico-éticas en Derecho sanitario (Thomson Reuters Aranzadi, 2013).
2. Juan Luis Beltrán Aguirre, ‘Vacunas obligatorias y recomendadas: régimen legal y derechos afectados’ (2012) 22, 1 Derecho y Salud 5.
3. César Cierco Seira, ‘De la vacunación y el derecho administrativo’ (2018) 193 Revista Española de Derecho Administrativo 9.
4. Nuria Garrido Cuenca, ‘Political and regulatory key factors of transparency and independence in terms of vaccination in Spain: Information, participation and lobbies’ (2017) 19, 1-2 Pharmaceuticals Policy and Law 103.