Compulsory Administration of AstraZeneca Vaccine- Issues and Challenges

Introduction

In the twilight of the year 2019, the world was plagued by a disease hitherto unknown and whose virulence and morbidity factors are high-pitched.

The first to be visited was the second-largest economy in the world, China; with its opaque disclosure system, the entire world would soon be greeted by the deadly virus eventually termed COVID-19. COVID-19 is a viral member of coronaviruses genus. According to the World Health Organization (WHO), ‘Coronaviruses (CoV) are a large family of viruses that cause illness ranging from the common cold to more severe diseases such as the  Middle East Respiratory Syndrome (MERS-CoV) and Severe Acute Respiratory Syndrome (SARS-CoV). Covid-19 is a new strain of the virus hitherto unknown to exist amongst humans.

Due to its high rate of infection and fatal consequences, the world went into panic mode which eventually resulted in lockdown across the globe. Thus, the quest for the control of the spread, both prophylactic and therapeutic was birthed and culminated into the launching of various vaccines amongst which is the highly-rated Oxford/AstraZeneca COVID-19 vaccine.

The Development of Oxford/AstraZeneca Covid-19 Vaccine

Oxford/AstraZeneca vaccine also known with the code name AZD 1222 was developed by the University of Oxford and AstraZeneca sometime in February 2020. It went into rapid clinical trials and by August 2020, the vaccine had entered the late-stage of phase III trials. Within a year of its development, the vaccine was adapted to meet the challenges of new variants of COVID-19 being experienced in some parts of the world most especially in the UK and South Africa. With the first jab received by 82 years old Brian Pinker on 4 January 2021, the vaccine was ready for popular administration.

Recent studies have shown admirable efficacy of the vaccine put at 90 percent when it is administered at half dose followed by full dose one month apart and 62 percent efficacy when administered at full dose twice with one month in between first and the second jabs. Despite the efficacy and safety assurances about AstraZeneca vaccine, doubts still exist amongst the multitude about the safety of the vaccine for human use. The fear is not unconnected with the speed with which the vaccine was developed which borders on non-adherence to clinical and pharmacological considerations usually involved in the development of vaccines of this tenor.

With large segments of the Nigerian population thumbing their noses at data on COVID-19 infections and fatalities In Nigeria, the prospects of widespread administration of the vaccine seems bleak. Be that as it may, on 2 March 2021, the Federal Government took delivery of 3.94 million doses of AstraZeneca/Oxford vaccines manufactured by the Serum Institute of India (SII)  and its administration has commenced in earnest.

Following expression of misgivings about the vaccine mostly from the traditional and religious quarters, the Federal Government has begun sensitization of the populace on the need to take the vaccine especially amongst the traditional rulers and religious leaders with the aim of bringing their subjects and followers up to date on the safety of the vaccine and the need to accede to taking same. Despite the federal government’s effort, not too many citizens have displayed enthusiasm about taking the vaccine. This situation has brought the government into a crossroad. In view of the danger posed by the highly contagious COVID-19, the need to protect the health of the nation and prevent the spread of diseases, can the federal government justifiably impose compulsory vaccination on the citizenry?

Compulsory Administration of AstraZeneca Vaccine and its legal implications

There are fears that despite the seemingly small quantity of doses of the vaccines, there may not be many Nigerians who will be too keen on being vaccinated. With its constitutional obligation to attend to the health of the nation as statutorily encapsulated by the National Health Act, 2014, the government cannot afford to sit by and allow citizens to undermine its efforts towards meeting its constitutional responsibilities. This reality has brought to the front burner, the dilemma facing the government and not too many options available; hence the quest to know whether the government can compel vaccination by virtue of its constitutional obligation to promote the health of the nation and ensure public safety.

 This question is both ethical and legal in its implications. Ethical in the sense that health workers including medical practitioners are guided by professional ethics founded on legal rules, customs of the professional and international best practices. In Nigeria, medical practitioners cannot compel a course of treatment for a patient without the latter’s consent. This found validation in Rule 19 of the Code of Medical Ethics in Nigeria, 2008 and section 23 (1) (d) of the National Health Act. The principle of informed consent of the patient is based on the rights to dignity of human person, privacy, conscience and religion recognized under sections 34, 37 and 38 of the Constitution of the Federal Republic of Nigeria (CFRN), 1999 as amended. This has also  been dubbed patient’s right to self-determination. Other health workers are guided by ethical rules which enjoined respect for the inviolability of a patient’s body and the fundamental need to always seek his or her consent before administering any procedure either prophylactic or therapeutic. In any case, all health workers are subject to the Constitution. While the rights preserved under sections 37 and 38 are subject to public safety, public order, public morality, public health and rights of others, nothing under section 45 of CFRN derogates from the right preserved by section 34 of CFRN, 1999 as amended.

 Nigerian judicial authorities appear to coincide with UK decisions on the point. See M.D.P.D.T. v. Okonkwo  (2001) NWLR (Pt. 711) 206 where the Supreme Court per Ayoola, JSC held that: The Constitutional right of privacy includes the right of a competent, mature adult to refuse treatment that may prolong one’s life even though that refusal may seem    unwise, foolish or ridiculous to others.

The Supreme Court further held citing Lord Templeman dissenting view in Sidaway’s case with approval that: The patient was free to decide whether or not to submit to a treatment recommended by the doctor… if the doctor making a balanced judgment advises the patient to submit to the operation, the patient is entitled to reject the advice for reasons which are rational or irrational or for no reason.

It is also instructive that the latest decision on the point in the UK Montgomery v Lanarkshire Health Board  [2015] UKSC 11 departed from the majority decision in Sidaway’s case. In Montgomery (supra), Lord Kerr and Reed stated thus:

‘The correct position, in relation to the risks of injury involved in treatment, can now be seen to be substantially that adopted in Sidaway by Lord Scarman, and by Lord Woolf MR in Pearce, subject to the refinement made by the High Court of Australia in Rogers v Whitaker, which we have discussed at paras 77-73. An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and her consent must be obtained before treatment interfering with her bodily integrity is undertaken.

From the foregoing, it is clear that the right to self-determination by patient hinged on dignity of human person, privacy and freedom of thought, conscience and religion is paramount and cannot be wished away by any other considerations save those recognized by the law. See  M.D.P.D.T v. Okonkwo (Supra)  

What other considerations was the Supreme court alluding to? Might the overriding interest of the public justify the state to override individual choices in health related issues in order to ensure public health safety especially in an era of epidemic. The World Health Organization (WHO) pronounced COVID-19 a pandemic as far back as March, 2020. A pandemic is defined as “an epidemic occurring worldwide, or over a very wide area, crossing international boundaries and usually affecting a large number of people”. Clearly from the above definition, a pandemic is an epidemic with wider spread. Practically speaking, COVID-19 meets the requirement of an epidemic envisaged by the Supreme Court in M.D.P.D.T. v. Okonkwo (Supra). In our view however compulsory vaccination is not only a disproportional measure to the pandemic, given the peculiarities of the human body, it would amount to unreasonable and reckless conduct to subject members of the public to vaccination independent of their will. But what of health officials? Can a medical doctor or nurse decline vaccination considering that their work entails high risk of infection or infecting other patients? Even for this category of persons there can be no compulsion. Although this may entail considerations of obedience to lawful and reasonable orders of employers, if there is good cause not to administer the vaccine on a medical personnel, no policy can compel it. We must remember that ultimately the court is the institution society has agreed to invest the responsibility of balancing conflicting interests in a way as to ensure the fullness of liberty without destroying the existence and stability of society.

Conclusion

The best option is for the government to continue the vigorous enlightenment campaign it has embarked on through the Nigerian Centre for Disease Control (NCDC) and the Presidential Task Force on COVID-19 on the dangers posed by the virus and observance of the protocols both pharmaceutical and non-pharmaceutical necessary to curb its spread. The signing of the Coronavirus Disease (COVID-19) Health Protection Regulations 2021 by President Muhammadu Buhari is one of the best steps so far taken by the Federal Government in its efforts to curtail the spread of the virus. In addition to emphasizing adherence to preventive measures put in place, the criminalization of non-compliance especially as relates to overcrowding in public places and events and non-wearing or usage of face/nose masks has demonstrated government’s commitment towards halting the spread of the disease.

These steps highlighted above are the best alternatives rather than compel all Nigerians irrespective of persuasions to succumb to forceful vaccination. Countries with worst experiences than ours have not made the vaccine compulsory on their citizens. Rather, they have gone on enlightenment and persuasion  route to ensure the safety of the society while respecting individuals’ choices. This is the way to go. Apart from being in consonance with the rights of citizens to dignity of human person, privacy, thought, conscience and religion, it is the most civilized option at this stage of our national experience.