Mandatory vaccination of medical personnel against COVID-19: European standards of its introduction

Authors

DOI:

https://doi.org/10.18370/2309-4117.2022.65.108-112

Keywords:

COVID-19, vaccination, medical personnel, health, public interest, restriction of rights, sanction

Abstract

Objective: to identify the standards of the European Court of Human Rights on the introduction of mandatory vaccination of medical personnel from COVID-19 in conditions of pandemic.
The analysis has been carried out on the Decisions of the European Court of Human Rights as for vaccination matters, which formed the legal position of the Court on its implementation by the State. These decisions were divided into groups according to the conditions in which the European Council launched mandatory vaccination: the situation, which is being ordinary, one (standard vaccination against diseases well known to medical science, where vaccines have been tested and investigated thoroughly). Another one is extraordinary situation within society and state, as well as in the world, for example, COVID-19 pandemic.
The standards of the European Court of Human Rights for the introduction of mandatory vaccination of medical personnel against COVID-19 in conditions of pandemic have been identified: these measures must be provided by the State legislation which is to meet quality rule of law criteria; to pursue legitimate goal (protection of the population from COVID-19); to be necessary in democratic society. Mandatory vaccination of healthcare professionals against COVID-19 should be used if the goal of protecting the population from COVID-19 cannot be achieved in other ways. Mandatory vaccination of medical personnel against COVID-19 is not the same as forced vaccination. The medical employee chooses whether to be vaccinated against COVID-19 or not according to his own views, values, no matter how irrational, unreasonable, shortsighted they may be in the opinion of the state and other people. The state does not have the right to use forced vaccination, but may apply the following: a range of measures to clarify, persuade, encourage mandatory vaccination of medical personnel against COVID-19, which may be direct or indirect, but not violent; sanctions for refusal from mandatory vaccination of medical personnel from COVID-19 who have no contraindications (suspension from medical activities, fines, etc.).
Conclusions. The data obtained in this way allow us to develop further proposals for improving legal regulation of vaccination in Member States of the Council of Europe and increase the effectiveness of ensuring the rights of medical personnel, reduce tensions within society.

Author Biographies

I.B. Ventskivska, O.O. Bogomolets National Medical University, Kyiv

MD, professor, head of the Department of Obstetrics and Gynecology No. 1

L.M. Deshko, Taras Shevchenko National University of Kyiv, Kyiv

JSD, professor, Constitutional Law Department

O.S. Lotiuk, Taras Shevchenko National University of Kyiv, Kyiv

JSD, professor, Constitutional Law Department

O.P. Vasylchenko, Taras Shevchenko National University of Kyiv, Kyiv

JSD, professor, head of the Department of Constitutional Law

T.T. Narytnyk, O.O. Bogomolets National Medical University, Kyiv

PhD, associate professor, Department of Obstetrics and Gynecology

References

  1. Senyuta, I., Harasymiv, O., Buletsa, S., et. al. “Personal data protection in terms of COVID-19: Experience of Ukraine.” Medicine and Law 40 (2021): 147–164.
  2. United Nations. International Law Commission “Formulation of the Nürnberg Principle”. Extract from the Yearbook of the International Law Commission 2 (1950): 374–8.
  3. Deshko, L., Lotiuk, O., Sinkevych, O., et. al. “The human right to quality medical care: changing the paradigm of international cooperation between states and interaction of public authorities and local self-government in foreign countries.” Georgian Medical News 319 (2021): 160–5.
  4. World Medical Association. Declaration of Helsinki “Ethical Principles for Medical Research involving Human Subjects” (Jul 9, 2018). Available from: [https://www.wma. net/policies-post/wma-declaration-of-helsinki-ethical-principles-for-medical-research-involving-human-subjects/], last accessed 02.09.2021.
  5. Deshko, L. “Patenting of medicinal products: the experience of implementation of the flexible provisions of the TRIPS-plus Agreement by foreign countries and the fundamental patent reform in Ukraine.” Georgian Medical News 9 (2018): 161–4.
  6. Deshko, L., Bysaga, Y., Bysaga, Y. “Public procurement in the healthcare sector: adaptation of the administrative legislation of Ukraine to the EU legislation.” Georgian Medical News 291 (2019): 126–30.
  7. United Nations. Universal Declaration of Human Rights (Dec 10, 1948). Available from: [https://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/217(III)], last accessed 02.09.2021.
  8. World Medical Association. Declaration of Lisbon on the Rights of the Patient (2015). Available from: [https://www.wma.net/policies-post/wma-declaration-of-lisbon-on-the-rights-of-the-patient/], last accessed 02.09.2021.
  9. World Medical Association. Declaration of Seoul on Professional Autonomy and Clinical Independence (Oct 2008). Available from: [https://www.wma.net/policies-post/wma-declaration-of-seoul-on-professional-autonomy-and-clinical-independence/], last accessed 02.09.2021.
  10. Council of Europe. European Convention on Human Rights (1950). Available from: [https://www.echr.coe.int/documents/convention_eng.pdf], last accessed 02.09.2021.
  11. European Court of Human Rights. “Kakaletri and Others v. Greece”. Application No. 43375/21 (2021). Available from: [https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7113391-9633858&filename=Request%20for%20interim%20measures%20 against%20Greece%20concerning%20compulsory%20vaccination%2-0for%20health%20staff.pdf], last accessed 10.10.2021.
  12. European Court of Human Rights. “Theofanopoulou and Others v. Greece”. Application No. 43910/21 (2021). Available from: [https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=003-7113391-9633858&filename=Request%20for%20interim%20measures%20 against%20Greece%20concerning%20compulsory%20vaccination%2-0for%20health%20staff.pdf], last accessed 10.10.2021.
  13. Deshko, L. “Application of Legal Entities to the European Court of Human Rights: a Significant Disadvantage as the Condition of Admissibility.” Croatian International Relations Review 24 (2018): 84–103.
  14. Deshko, L., Bysaga, Y., Kalyniuk, S., et. al. “State Obligations on Provision the Right of Primary Healthcare Doctor for Medical Practice as Entrepreneurship in the Light of Transformation of the Health Care System of Ukraine.” Georgian Medical News 6 (2020): 194–9.
  15. Buletsa, S., Deshko, L., Zaborovskyy, V. “The peculiarities of changing health care system in Ukraine.” Medicine and Law 38 (2019): 427–42.
  16. Deshko, L., Bysaga, Y., Zaborovskyy, V. “Protection of human rights by the Constitutional Court of Ukraine in the field of health care.” Georgian Medical News 9 (2019): 165–71.
  17. Deshko, L., Kostenko, Y., Koval, I., et. al. “The right to health: Ukraine’s international obligations and financial activity of public authorities in the context of reforming the National Healthcare system.” Georgian Medical News 7–8 (2020): 177–82.
  18. Deshko, L., Bysaga, Y., Vasylchenko, O., et. al. “Medicines: technology transfer to production, cession of ownership rights for registration certificates and transfer of production in conditions of modern challenges to international and national security.” Georgian Medical News 10 (2020): 180–4.
  19. European Court of Human Rights. Case of “Vučković and Others v. Serbia”. Judgment (Mar 25, 2014). Available from: [https://www.legal-tools.org/doc/8c1fca/pdf/], last accessed 10.10.2021.
  20. European Court of Human Rights. Case of “Ibrahim and Others v. United Kingdom”. Judgment (Dec 16, 2014). Available from: [https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=002-10310&filename=002-10310.pdf&TID=ihgdqbxnfi], last accessed 10.10.2021.
  21. Novikova, N., Deshko, L., Gurzhii, A. “Leading approaches to modernization of state financial control: a case of Ukraine.” Proceedings of the 2nd International Conference on Social, Economic and Academic Leadership (ICSEAL 2018). Advances in Social Science Education and Humanities Research 217 (2018): 149–56.
  22. Deshko, L. “Criteria for the court’s compliance with the obligation to provide justification of its decisions.” Teise 99 (2016): 186–93.
  23. PACE. Resolution 2361 “COVID-19 vaccines: ethical, legal and practical considerations” (2021). Available from: [https://pace.coe.int/pdf/74f62 1f624d2bf8b0c7ff4c269f1a8d493c90dcce035b1fc030b116275eab9a2/resolution%202361.pdf?__cf_chl_jschl_tk__=7idG6yY6wn4v_7j m6URRW6Xaz1ftw._ME.WPOGyaCN4-1641515300-0-gaNycGzNCP0], last accessed 10.10.2021
  24. Council of Europe. Convention for the protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine (ETS No. 164) (Apr 04, 1997). Available from: [https://www.coe.int/en/web/conventions/full-list?module=treaty-detail&treatynum=164], last accessed 10.10.2021.
  25. Deshko, L., Udovenko, Z., Bulycheva, N., et. al. “Provision of the right to non-interference with privacy during muster process with the participation of doctor (forensic expert).” Georgian Medical News 310 (2021): 186–92.
  26. Buletsa, S., Grinko, S., Turyanitsya, V., et.al. “Moral damage in medicine (review).” Georgian Medical News 288 (2019): 146–53.
  27. Deshko, L., Vasylchenko, O., Sherbak, I., et al. “Ukraine’s international liabilities on initiation of measures for public health protection and the role of local authorities in implementation of health care policy.” Georgian Medical News 312 (2021): 163–8.
  28. European Court of Human Rights. Case of “Jehovah’s Witnesses of Moscow v. Russia”. Judgment (Jun 10, 2010). Available from: [https://hudoc.echr.coe.int/fre#{«itemid»:[«001-99221»]}], last accessed 10.10.2021.
  29. Deshko, L., Ivasyn, O., Gurzhii, T., et. al. “Patenting of medicines in Ukraine through the prism of the Association Agreement with the EU and the TRIPS Agreement: improvement of medical and administrative law.” Georgian Medical News 288 (2019): 154–8.
  30. Buletsa, S., Deshko, L. “Comprehensive Reforms of the Health Care System in Different Regions of the World.” Medicine and Law 37 (2018): 683–700.
  31. European Court of Human Rights. Case of “Solomakhin vs Ukraine”. Judgment (Sep 24, 2012). Available from: [https://hudoc.echr.coe.int/fre#{«itemid»:[«001-109565»]}], last accessed 10.10.2021.
  32. European Court of Human Rights. Case of “Vavřička and Others v. the Czech Republic”. Judgment (Apr 8, 2021). Available from: [https://hudoc.echr.coe.int/fre#{«itemid»:[«001-209039»]}], last accessed 10.10.2021.
  33. European Court of Human Rights. Report of the Commission “Dr. Sigurd Barthold against Federal Republic of Germany” (1983). Available from: [https://hudoc.echr.coe.int/app/conversion/pdf?library=ECHR&id=001-73668&filename=BARTHOLD%20v.%20GERMANY.pdf], last accessed 10.10.2021.
  34. European Court of Human Rights. Case of “Dink vs Turkey”. Judgment (Sep 14, 2010). Available from: [https://hudoc.echr.coe.int/app/conversion/pdf/%3Flibrary%3DECHR%26id%3D003-3262169-3640194%26filena me%3D003-3262169-3640194.pdf+&cd=2&hl=ru&ct=clnk&gl=ua &client=opera], last accessed 10.10.2021.
  35. European Court of Human Rights. Case of “RTBF vs Belgium”. Judgment (Sep 15, 2011). Available from: [https://hudoc.echr.coe.int/eng?i=001-104265], last accessed 10.10.2021.
  36. European Court of Human Rights. Case of “Ahmet Yıldırım vs Turkey”. Judgment (Dec 18, 2012). Available from: [https://hudoc.echr.coe.int/fre?i=002-7328], last accessed 10.10.2021.
  37. Larson, H., Figueiredo, A., Karafllakis, E., et al. “State of vaccine confidence in the EU 2018: a report for the European Commission”. Publications Office of the European Union, Luxembourg (2018): 76.
  38. Deshko, L. “Qualification features of the circumstances introducing activity for protection of the paragraph “b” clause 3 article 35 of the convention for the protection of human rights and fundamental freedoms.” ScienceRise: Juridical Science 1 (2019): 10–4.
  39. European Court of Human Rights. Case of “Hämäläinen v. Finland”. Judgment (Jul 16, 2014). Available from: [https://hudoc.echr.coe.int/fre#{«itemid»:[«002-9593»]}], last accessed 10.10.2021.
  40. European Court of Human Rights. Case of “Valdís Fjölnisdóttir and Others v. Iceland”. Judgment (Aug 18, 2021). Available from: [https://hudoc.echr.coe.int/eng#{«appno»:[«715 52/17»],»itemid»:[«001-209992»]}], last accessed 10.10.2021.
  41. Buletsa, S., Zaborovskyy, V., Chepys, O., et. al. “Obligations to indemnify damages inflicted by maiming and other personal injuries including death: theoretical and practical issues (review).” Georgian Medical News 294 (2019): 156–65.

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Published

2022-08-09

How to Cite

Ventskivska, I., Deshko, L., Lotiuk, O., Vasylchenko, O., & Narytnyk, T. (2022). Mandatory vaccination of medical personnel against COVID-19: European standards of its introduction. REPRODUCTIVE ENDOCRINOLOGY, (65), 108–112. https://doi.org/10.18370/2309-4117.2022.65.108-112

Issue

No. 65 (2022)

Section

International recommendations

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Copyright (c) 2022 І.Б. Венцківська, Л.М. Дешко, О.С. Лотюк, О.П. Васильченко, Т.Т. Наритник

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