As it currently stands, the collective objective and zeitgeist in the UK towards the COVID-19 virus and the COVID-19 vaccines is one of urgency towards prevention and protection. Though understandable, it does call to the forefront the bioethical principles and the examination of these principles when applied to the COVID-19 vaccines.
Bioethics is defined as the branch of applied ethics that studies the philosophical, social and legal issues arising in medicine and the life sciences. 3
To us as a company, bioethics is where the compassion of medicine and the wisdom of the Law converge. At the central point of convergence between the disciplines of medicine and law is the bioethical principle of autonomy. Autonomy is the right to self-government, personal freedom and will, so as to act freely and independently provided that one has the capacity to understand one’s situation in order to make a decision about the care they receive which is in their best interest. Autonomy is synonymous with the recognised legal principle of self-determination- meaning that one has sovereignty over one’s life and in doing so possesses the right to control what happens to them. This right and legal principle form the basis and necessity for requiring consent, to any form of medical treatment and in doing so maintain bodily inviolability. 4
Despite the rights of autonomy being enshrined within the field of medicine and at the core of the relationship between healthcare professionals (HCP) and patient, the leading rebuttal to the right of autonomy relating to how best to tackle COVID-19 pandemic is the argument for paternalism, buttressed by utilitarianism.
Starting with the latter, Libertarians would agree with the philosophy that one must be free to pursue a conception of life that is conducive to human flourishing. However, the utilitarian would propose that if one’s autonomy adversely affects other people, then the exercising of one’s own autonomy cannot be conducive to human flourishing. 5
It is at this junction of the argument that paternalism may be introduced to rectify “injurious” autonomy for the beneficial interest of the many. Paternalism is deemed as an authority that seeks to make a decision on behalf of another individual under the justification of appealing to the principles of beneficence (the duty to do good). Within the realm of medicine, paternalism would manifest itself in the form of the HCP making the decision that a medical procedure or the administration of a medicinal product would be appropriate and necessary for a patient’s well-being. Nevertheless, as noble as the concept of paternalism appears it can not supersede autonomy, in so far as a person of sound mind that possess the mental capacity to truly make autonomous decisions. Should autonomy need to be applied, in such a situation involving an incapable individuals (due to intellectual disability), then paternalism seeks to restore autonomy. In this instance, it would then raise the question as to whether this is genuine paternalism as it could be argued that the restoration of autonomy would mean it could not have been exercised in the first place. Paternalism implemented where an individual is self-autonomous would be seen as an infringement upon the rights of the individual and in terms of bioethics, those of the patient. As established in the ruling of Justice Cardozo in Schloendorff v New York Hospital (1914) 105 NE 92:
“Every human being of adult years and sound mind has a right to determine what shall be done with his own body; [and a surgeon who performs an operation without his patient’s consent, commits an assault]…”
This sentiment is echoed and expanded upon by Justice Flaherty in the case of McFall v Shimp (1978) 10 Pa D & C (3d) 90, who articulates the importance of autonomy and its safeguarding in a free society:
“Our society, contrary to many others, has as its first principle, the respect for the individual, and that society and government exist to protect the individual from being invaded and hurt by another.”
He continues:
“For our law to compel the defendant to submit to an intrusion of his body would change every concept and principle upon which our society is founded.”
Respecting a self-autonomous individual’s decision, no matter how incongruent it may seem, should not give rise to alarming rhetoric or to the notion of deprioritising unvaccinated patients. Such a notion contravenes the central pillar of bioethical principles of non-maleficence (do no harm) and justice (fairness). In light of the Government’s Winter Plan and attitudes towards mandatory COVID passports, it is imperative that views towards the COVID-19 vaccines do not erode or encroach upon the autonomy of free UK citizens. Such an erosion and encroachment would yield substantial consequences with long-term ramifications to three key areas we have identified, long after the COVID-19 pandemic itself.
Imbalance of Power in Favour of The State:
The first consequence of erosion and encroachment of a citizen’s autonomy will result in the creation of a public bill (a proposal for new law) that becomes law, which will create an imbalance of power in favour of the State. The creation and upholding of these laws, via legal rulings, would set course for uncharted territory by potentially fostering dangerous precedence. The wisdom and longevity of the Law (in England & Wales) seek not to remedy issues of today but to foresee those that may arise tomorrow. The cornerstone of common law and the reaffirmation of judicial rulings unwavering and consistency are entrenched in the adherence to precedence. Therefore, should a future government seek to override self autonomous decision-making, again on the grounds of paternalism, they need only refer to those laws drafted and adhered to during the COVID-19 pandemic so as to widen the scope of government power. The protection of individual sovereignty is vital, as individual rights provide a corrective to this imbalance by ensuring that the rights of the individual will be given due consideration and respect.
It is worth mentioning that under The Coronavirus Act 2020, Schedule 19 Section 3 subparagraph (1)(2).14 the Government does not compel any individual to mandatory vaccination. However, the potential requirement of a mandatory COVID passport is not within the spirit of the law and touches upon the second consequence to our society.