Compulsory Vaccination versus Informed Consent

[SaneVax: 09 Agust 2012, Maceio Brazil: Belgian Lawyer Philippe Vanlangendonck made a presentation on European law regarding compulsory vaccination versus informed consent at the 19th World Congress of Medical Law.  According to Mr. Vanlangndonck, vaccinations are a medical procedure and as such the laws regarding informed consent should apply.]

THE PROTECTION OF THE PHYSICAL INTEGRITY AND THE PRINCIPLE OF INVIOLABILITY OF THE HUMAN BODY REGARDING COMPULSORY VACCINATIONS

By Philippe A. P. M VanLangendonck, Lawyer, Brussels, Belgium

Introduction:

The Belgian law of 22 August 2002 on patients’ rights introduced the requirement of prior informed consent to all medical procedures including vaccination. The right to physical integrity is an absolute right guaranteed by Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The Charter of Fundamental Rights of the European Union also established in 2010 the right to the integrity of the person, in order that everyone has the right to respect for his or her physical and mental integrity. Article 3 of the Charter also established that in the fields of medicine and biology, this right must be respected, in particular where the free and informed consent of the person is concerned, according to the procedures laid down by law.

Under Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms is the right to respect for private and family life protected with no interference by a public authority, with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests for the protection of health.

In such circumstances which could be the limits to prior informed consent in the field of compulsory and/or pandemic vaccinations? How do we legally apply the proportionality examination considering the protection of the health in its individual and collective dimensions?

To which extent will individual medical contraindications and the therapeutic freedom of physicians be respected? In which circumstances could a medical treatment like vaccination be imposed? What about the responsibilities about the damages caused by the heavy metals which are components of some vaccines? Where the efficacy of a given vaccination is either partial or not guaranteed, could the medical act of vaccination be legally requalified as “medical experimentation”?

All these complex questions will be examined through Belgian and European jurisprudence and the application of the constitutional and international law provisions, against the backdrop of the fundamental principle “Primum non nocere”.

1.- Each Vaccination is a medical procedure:

In Belgium, the practice of the healing arts1 includes the establishment of diagnosis and the administration of treatment(s), or any act designed to or purporting to be, in respect of a human being, or a review of health status or screening for disease and disability, or the diagnosis, the establishment or implementation of treatment of a medical condition, physical or mental, real or perceived or vaccination 2.

In its opinion of 20 January 1996 on the administration of vaccines, the National Council of the Belgian Medical Board states that «Vaccination remains a medical procedure (Art. 2 of the Royal Decree of 10 November 1967). Only the physician is able to prescribe it and to track as well as treat its side effects».3

Any physician enrolled in the Medical Board, in the context of the lawful exercise of medicine in Belgium, must respect the law of 22 August 2002 on patient rights and specifically Art. 8. § 1 of the Law of 22 August 2002 on the rights of the patient which states that:

“The patient has the right to freely consent to any intervention by the professional practitioner provided the patient disposes of prior information. This consent is to be explicitly expressed, except in cases where the professional practitioner, after having sufficiently informed the patient, can reasonably infer from the latter’s behaviour his or her consent to the intervention,” and Art. 8. § 2 of the same Act, which provides that “the information provided to the patient for his consent … concerning the purpose, nature, the degree of urgency, duration, frequency, contraindications, side effects and risks involved in the intervention and relevant to the patient, follow-up care, possible alternatives and the financial impact thereof”.

Pertinent information must be provided at a time when the patient still has sufficient time to reflect upon the options before the date of the projected treatment (medical procedure). This important aspect also concerns campaigns such as the current cervical cancer vaccination campaign aimed at young girls in Belgium and in other countries.

In principle, any vaccine must be preceded by an examination to verify that the product to be administered to the child or patient is not dangerous for him or her, with at least the following group of tests:

– Full Ionogram, urea assays,
– Lipoproteinogram,
– Endocrine balance,
– Titration of all antibodies specific to any vaccinations already administered,
– Testing for HIV and the various forms of hepatitis,
– Electrophoresis of serum proteins and immunophoresis, so as to obtain a global overview of the capacity or incapacity of the patient’s body to produce antibodies,
– and , depending on the age of the patient, a comprehensive review of radiology results.

The physician must in any event inform the patient before starting the planned treatment (or medical act). The provision of timely information must allow sufficient time and opportunity to the patient to make an informed decision.

Read the entire presentation here. The entire presentation is made accessible to all with permission of the author.