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Israel Journal of Health Policy Research
Published in: Israel Journal of Health Policy Research 1/2017

Open Access 01-12-2017 | Integrative article

Would it be legally justified to impose vaccination in Israel? Examining the issue in light of the 2013 detection of polio in Israeli sewage

Author: Shelly Kamin-Friedman

Published in: Israel Journal of Health Policy Research | Issue 1/2017

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Abstract

Background

The detection of wild poliovirus in Israeli sewage in May 2013 led the health authorities to decide that children who had been vaccinated with IPV would also be vaccinated with OPV. The decision sought to protect vulnerable Israeli individuals who were either not vaccinated with IPV or who suffered from an immune deficiency, to preserve Israel’s status as a polio-free country, to prevent the virus’ “exportation” into vulnerable polio-free countries, and to participate in the global efforts toward the eradication of polio. After a massive public persuasion campaign, 79% of the children born after 2004 were vaccinated as well as 69% of the children residing in central Israel. A 2014 State Comptroller Report stated that the Ministry of Health should draw conclusions from the low compliance rates in certain Israeli regions.

Goals

The article seeks to examine the legal legitimacy of mandatory vaccination in the service of eradicating a contagious disease (as opposed to preventing a pandemic outbreak), which was one of the objectives in the 2013 Polio case. It more specifically relates to current Israeli law as well as to a hypothetical new public health law which would authorize health officials to oblige vaccination and enforce this through the use of criminal sanctions.

Method

Qualitative content analysis through the interpretation of court judgements, laws, legislative protocols, health ministry guidelines and documented discussions of the Advisory Committee on Infectious Diseases and Immunization.

Main findings and conclusion

A mandatory vaccination backed by criminal sanctions in the service of the eradication of contagious diseases would probably be perceived as infringing on the constitutional right to autonomy to a greater extent than necessary according to Israeli law and case law precedents. There may be some added value inherent in a new public health law which would authorize health officials to oblige vaccination where nonrestrictive measures have been ineffective. However, the law should also specify a variety of sanctions to accompany the enforcement of mandatory vaccinations which would be formulated from least to most restrictive according to the “intervention ladder” concept. The law should also describe the circumstances which would justify the implementation of each and every sanction as well as the procedural safeguards designed for established decisions and fairness toward the individual(s) whose rights are infringed by the application of these sanctions.
Footnotes
1
L.O. Gostin stresses that a political or governmental entity possesses principle responsibility to protect and promote public health, as “public health can be achieved only through collective action, not individual endeavor. Acting alone, individuals cannot ensure even minimum levels of health. Individuals may procure personal medical services…yet no single individual or group of individuals can ensure the health of the community” [61].
 
2
Any government intervention meant for the protection of health must comply with the stipulations mentioned in the Limitation Clause (§8) if other basic rights are being violated such as the right to individual autonomy as discussed in the present article.
 
3
Economic theories assume rational behavior among vaccine recipients, even though this assumption is not always true (some people may prefer to pay a fine rather than vaccinate their children). Therefore, and although these theories may consider the eradication of contagious diseases as a proper purpose, they cannot always support the effectiveness of the intervention implemented with a view to accomplishing this purpose, as discussed in the present article.
 
4
The WHO and UNICEF declared a public health emergency in response to the detection of wild poliovirus in environmental samples taken in Egypt, Israel, the West Bank and Gaza Strip following a polio outbreak in Syria. It was noted that a multi-country response was needed despite the fact that polio cases had only been detected in Syria, given the ongoing civil war in this country and the mass displacement of its population into neighboring countries. “The primary goal is to ensure that oral polio vaccine (OPV) is urgently delivered into all communities” [51].
 
5
Sanctions applied against those who refuse vaccination (depriving the right to education) in the US resulted in increased immunization rates [16, 62, 63]. However, given that the majority of the population in Israel complies with vaccination recommendations voluntarily, and in light of Israeli parents’ motivation toward making autonomous decisions, the imposition of a mandatory vaccination may result in resistance and attain the opposite of its intended purpose [56, 64].
 
6
The enactment of the Vaccination Act in England (1853), which imposed fines on parents who failed to allow their children to be vaccinated, led to riots in the streets and to serious protests made not only by those opposing the vaccination itself but also by opponents of government intrusion on personal autonomy [19, 20].
 
7
The work of ensuring that all US students were vaccinated according to school admission laws required the cooperation of both health and education administrators with different priorities. School principals had difficulty keeping track of students’ medical records and claimed that budget shortages prevented the implementation of enforcement measures [19].
 
8
Gostin suggests that adoption of equally effective and less restrictive alternatives would also encourage voluntary compliance [60].
 
9
Imposing tort liability on parents who refuse to vaccinate their children may also encourage vaccination. However, such liability may only be imposed when the parents’ choice of non- vaccination results in harm to others. Proving that a particular unvaccinated child transmitted a disease to another and caused harm can be a difficult and in some cases an even impossible task [65].
 
10
In the Adalah case, Justice Barak-Erez (in ¶65 of the Court’s decision) held that public education was essential to promoting compliance with vaccination, and referred to Alberstein M, Davidovitch N. .Therapeutic Jurisprudence and Public Health: Israeli Perspectives. Bar Ilan studies. 2010; 26: 549, which called for the implementation of therapeutic Jurisprudence in public health [31].
 
11
The minority opinion in the Adalah case considered the partial deprivation of child benefits as a financial sanction which would be legitimate as part of a general piece of legislation that would address vaccination issues [26].
 
12
According to the Nuffield Council of Bioethics, the “intervention ladder” relates to public health interventions in general, and includes both intrusive and nonintrusive interventions which do not require legislation.
 
13
The law should clarify the risk which justifies a certain sanction according to the mode of transmission, the risk’s duration, the probability of harm and the severity of harm [12].
 
14
The Israeli Mental Healthcare Law 1991, which replaced a former law passed in 1955, is an example of a statute that balances society’s interest in protecting the individual or the public from the symptoms of mental illnesses against the need to promote human rights and individual autonomy. Among other things, the law provides for limited psychiatric discretion in the imposition of forced hospitalization, and further provides for the option of appealing a psychiatric decision, as well as the entitlement to legal counseling (for the individual facing hospitalization).
 
Literature
1.
2.
Swartz TA. The epidemiology of polio in Israel - a historical perspective. In: Israel Center for Disease Control (ICDC) Ministry of health, Dyonon Pub. Ltd.; 2008.
3.
4.
5.
Fine P, Eames K, Heymann DL. Herd immunity: a rough guide. Vaccine. 2011;52:911.
6.
7.
8.
9.
10.
Kaliner E, Kopel E, Anis E, Mendelson E, Moran-Gilad J, Shulman LM, Grotto I. The Israeli public health response to wild poliovirus importation. Lancet Infect Dis. 2015;15(10):1236–42.CrossRefPubMed
11.
12.
Gostin LO, Public health law power, duty, restraint. London: University of California Press; 2000 p 8,20,89,95.
13.
14.
HCJ 7245/10 Adalla Legal Center v. The Israeli Ministry of Social Affairs and Social Services. Nevo Legal Database Isr. 2013 p. 52 [in Hebrew].
15.
Gross A. In search of the right to health in Israeli constitutional law. In: Sapir G, Barak-Erez D, Barak A, editors. Israeli constitutional law in the making. Oxford and Portland, Oregon. Hart Publishers 2013; 311–331.
16.
Brisis PA, Rodewald LE, Hinman AR, et al. Reviews of evidence regarding interventions to improve vaccination coverage in children, adolescents, and adults. Am J Prev Med. 2000;18(1S):97–140.CrossRef
17.
Hemenway D. Financial incentives for childhood immunization. Journal of Policy Analysis and Management. 1995;14(1):133–9.CrossRefPubMed
18.
19.
Colgrove J. State of immunity: The politics of vaccination in twentieth-century America. Berkeley and Los Angeles, California: University of California Press; 2006, p 8, 10, 196, 200.
20.
Salmon DA, Teret SP, Raina M, Salisbury D, et al. Compulsory vaccination and conscientious or philosophical exemptions: past, present and future. Lancet. 2006;367(9508):436–42.CrossRefPubMed
21.
22.
23.
24.
HCJ 7245/10 Adalla legal center v. The Israeli Ministry of Social Affairs and Social Services. Nevo Legal Database Isr 2013 p. 28–29 [in Hebrew].
25.
HCJ 7245/10 Adalla legal center v. The Israeli Ministry of Social Affairs and Social Services. Nevo Legal Database Isr 2013 p. 62–63. [in Hebrew]
26.
HCJ 7245/10 Adalla legal center v. The Israeli Ministry of Social Affairs and Social Services. Nevo Legal Database Isr 2013 p. 69–76. [in Hebrew]
27.
HCJ 7245/10 Adalla legal center v. The Israeli Ministry of Social Affairs and Social Services. Nevo Legal Database Isr 2013 p. 29–40. [in Hebrew]
28.
HCJ 7245/10 Adalla legal center v. The Israeli Ministry of Social Affairs and Social Services. Nevo Legal Database Isr 2013 p. 63–68. [in Hebrew]
29.
30.
Palestine Gazette Extraordinary No. 1065 of 20th December, 1940.
31.
Alberstein M, Davidovith N. Therapeutic jurisprudence and public health. Studies in Law [Mehkarei Mishpat] 26 Bar Ilan University 2010; 549, 577 [in Hebrew].
32.
Green MS, Swartz T, Mayshar E, Lev B, Leventhal A, Slater PE, Shemer J. When is an epidemic an epidemic? Israel Medical Association Journal. 2002;4:3.PubMed
33.
34.
HCJ 4330/93 Ganem v. The Israel bar association. Nevo Legal Database Isr. 1996 [in Hebrew].
35.
LCA 5587/97 Attorney General of Israel v. Zeev acer and Beverly Cohen. Nevo Legal Database Isr. 1997 [in Hebrew].
36.
Faden RR, Beauchamp T. A history and theory of informed consent. New York: Oxford University Press; 1986.
37.
38.
Childress JF, Faden RR, Gaare RD, Gostin LO, Kahn J, Bonnie RJ, Kass NE, Mastroianni AC, Moreno JD, Neiburg P. Public health ethics: mapping the terrain. J Law Med Ethics. 2002;30:170–8.CrossRefPubMed
39.
40.
Kass NE. Public health ethics: from foundations and frameworks to justice and global public health. J Law Med Ethics. 2004;32:232–42.CrossRefPubMed
41.
CA 470/87 Juhar Alturi v. the Israeli Ministry of Health 47(4) PD 146 Isr. 1993 [in Hebrew].
42.
DC (BS) 1018/00 Haliva Eyal v. the Israeli health department. Nevo Legal Database Isr. 2005 [in Hebrew].
43.
44.
Silverman RD. Private choice versus public health: religion, mortality and childhood vaccination law. University of Maryland Law Journal of Race, Religion, Gender and Class. 2001;1:505–21.
45.
46.
Lipscomb J, Drummond M, Fryback D, Gold M, Revicki D. Retaining, and enhancing, the QALY. Value Health. 2009;12(s1):18–26.CrossRef
47.
Miller MA, Hinman AR. Economic analyses of vaccine policies. In: Plotkin SA, Orenstein WA, Offit PA, editors. Vaccines 6th edition. Philadelphia: PA Saunders; 2013. section 5, 1413.
48.
Powers M, Fadden R. Social justice – the moral foundation of public health and health policy. New York: Oxford University Press; 2006. p. 80–99.
49.
Gostin LO, Powers M. What does social justice require for the public's health? Public health ethics and policy imperatives. Health Aff. 2006;25(4):1053–60.CrossRef
50.
Evans T, Whitehead M, Diderichsen F, Bhuiya A, Wirth M. Challenging inequities in health: from ethics to action, vol. 10. New York: Oxford University Press; 2001.CrossRef
51.
52.
Gostin LO, Bayer R, Fairchild AL. Ethical and legal challenges posed by severe acute respiratory syndrome. J Am Med Assoc. 2003;290(24):3229–37.CrossRef
53.
54.
HCJ 10662/04 Hasan v. The National Insurance Institute. Nevo Legal Database Isr. 2012 [in Hebrew].
55.
Lantos JD, Jackson MA, Opel DJ, Marcuse EK, Myers AL, Connelly BL. Controversies in vaccine mandates. Current Problems in Pediatric and Adolescent Health Care. 2010;40(3):38–58.CrossRefPubMed
56.
Velan B, Boyko V, Shenhar G, Lerner-Geva L, Kaplan G. Analysis of public responses to preparedness policies: the cases of H1N1 influenza vaccination and gas mask distribution. Israel J Health Policy Res. 2013;2:11.CrossRef
57.
58.
Fairchild AL, Bayer R, Colgrove J. Searching eyes – privacy, the state and disease surveillance in America. Berkeley and Los Angeles, California: University of California Press; 2007. p. 204–27.
59.
60.
Gostin LO. The future of communicable disease control: toward a new concept in public health law. Milbank Q. 2005;83(4):1–17.CrossRef
61.
Gostin LO. Public health law in a new century part I: law as a tool to advance the community's health. J Am Med Assoc. 2000;283(21):2837–41.CrossRef
62.
Robbins KB, Brandling-Bennett D, Hinman AR. Low measles incidence: association with enforcement of school immunization laws. Am J Public Health. 1981;71(3):270–4.CrossRefPubMedPubMedCentral
63.
Hinman A, Orenstein WA, Williamson DE, Darrington D. Childhood immunization: laws that work. J Law Med Ethics. 2002;30:122–7.PubMed
64.
65.
Baxter TD. Tort liability for parents who choose not to vaccinate their children and whose unvaccinated children infect others. University of Cincinnati Law Review. 2014;82(1):1–43.
Metadata
Title
Would it be legally justified to impose vaccination in Israel? Examining the issue in light of the 2013 detection of polio in Israeli sewage
Author
Shelly Kamin-Friedman
Publication date
01-12-2017
Publisher
BioMed Central
Published in
Israel Journal of Health Policy Research / Issue 1/2017
Electronic ISSN: 2045-4015
DOI
https://doi.org/10.1186/s13584-017-0182-z

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