Author: Wang Guisong, J.D., professor at the Law School of Renmin University of China.
Article source: “New Briefs” on August 23, 2021.
As of August 20, more than 1.9 billion doses of the novel coronavirus vaccine have been administered throughout China, with the number of vaccinations approaching 60% of the total population. This is still some distance from the goal of more than 80% herd immunity recommended by Academician Zhong Nanshan. In order to establish an immune barrier and achieve herd immunity, localities are still making final efforts to vaccinate the whole population with the novel coronavirus vaccine.
Although the central government has repeatedly emphasized that the process should be carried out in accordance with the law, some localities are in a hurry to achieve the goal and there have been some illegalities. Since the provision “implement the rule of the country according to the law and built a rule-by-law socialist country ????????????????? was written into the PRC Constitution twenty-two years ago, the administration of government operations in accordance with the law should already be a matter of course.
There are several questions to consider in terms of whether the new vaccine should be administered and how to treat those who are not vaccinated.
- The first and foremost prerequisite question is, is it a legal obligation for residents to be vaccinated with the novel vaccine?
In 2019, Article 6(2) of the Vaccine Control Law states, “Persons residing in the territory of China shall enjoy the right to receive immunization-planned vaccines and fulfill the obligation to receive immunization-planned vaccines in accordance with the law. The government provides planned immunization planning vaccines to residents free of charge.” Similarly, Article 21 of the 2019 Basic Medical Care and Health Promotion Law states that “residents have the right and obligation to receive planned-immunization vaccines in accordance with the law.”
It is the immunization plan vaccines that are obligatory. According to the Vaccine Control Law, the so-called immunization plan vaccines, sometimes referred to as Class I vaccines, “are vaccines that residents should receive in accordance with government regulations, including vaccines stipulated in the national immunization plan, vaccines added by the people’s governments of the various provinces, autonomous regions and municipalities directly under the central government in implementing the national immunization plan, including vaccines organized by people’s governments above the county level or their competent health departments for emergency vaccination or group vaccination”.
Currently, the novel coronavirus vaccine is not part of the immunization plan; it is only a Class II vaccine. Therefore, there is no legal obligation for residents to receive the novel coronavirus vaccine. The fact that vaccination with the novel coronavirus vaccine is not a legal obligation means that it is not a compulsory obligation required by the state. For this reason, the State follows the basic principle of “informed consent and voluntariness” when it comes to vaccination.
- Can the government promote vaccination through indirect compulsory means, since residents are not obliged to receive it?
The National Health Commission has repeatedly emphasized that vaccination is voluntary and not mandatory. Such coercion does not only mean direct forced vaccination – restricting personal freedom, holding down, rolling up sleeves, and forcibly injecting the vaccine.
In order to promote vaccination, one local practice is to not allow unvaccinated people to enter public places, etc. For example, recently, Anhui Province and other places have started “two-code” joint checks, requiring entry into public places with both a health code and a vaccination record. In the implementation, unvaccinated persons are allegedly required to register their names, phone numbers and residential addresses before they can enter (but this is not stated in the notice). In other words, the requirement does not completely prohibit unvaccinated people from entering public places, but mainly adds complexity and trouble to the procedure. However, in the reality of enforcement, because there must be accountability after an incident occurs, it is hard to avoid the problem of adding layers and refusing access. Access to public places is a modern necessity for survival, and restricting access to public places undoubtedly has a significant impact on a person’s life and work.
Another approach is to include non-vaccination in the list of defaulters. For example, many places in Hubei Province and Chongqing Municipality provide for the inclusion, in their personal integrity/credit history records geren chengxin jilu ?????? , of people who refuse, absent an acceptable excuse, to get the novel coronavirus. Inclusion in the integrity record means that future loans, housing purchases, travel, consumption, and even children’s schooling and employment will be treated unfavorably. However, on the one hand, the personal integrity/credit history should be done in accordance with the law, and no integrity matters should be added at a whim. On the other hand, there is no connection between whether or not to receive the novel corornavirus vaccine and a person’s honesty and credit. Therefore the enforcement of such a provision is improper and should be prohibited. The choice of “another option” when asked for vaccination is in line with the “voluntary” principle of vaccination, and there is no breach of trust.
- Can the government take measures to encourage vaccination?
It is worth remembering that at the beginning of this year’s vaccination campaign, a number of places offered incentives such as eggs, milk, disinfectant, etc. to those who received the vaccine. Although they are only small things, they still bring a willingness to vaccinate to many people living at home, and add a bit of joy to the slightly miserable life of the epidemic.
So, is this incentive to use public funds illegal? Because the increased vaccination rate helps prevent the infection and expansion of the epidemic, it is a matter of important public interest, and although it is also using public funds for incentives, it is still necessary for the public good and is among the proper uses of special funds. Therefore, the government’s adoption of this incentive mechanism is within the scope of the permissible.
Of course, some people may ask, “Why is the incentive mechanism feasible but not the restriction mechanism? Theoretically, a restriction is an infringement, an unfavorable measure, and should have a clear basis, while an incentive is a grant, which generally meets budgetary requirements. In terms of the real system, a restriction mechanism does not comply with the “voluntary” principle of vaccination, while an incentive mechanism only stimulates the willingness to vaccinate, and the choice to vaccinate remains voluntary.
- Can the unvaccinated be held legally responsible for contracting the novel coronavirus?
The circulars in Anhui and Jiangxi provide for serious accountability in accordance with the law for incidents of novel coronavirus infection caused by failure to vaccinate against neo-coronavirus (except for those with contraindications). In other words, not only the leaders concerned will be held accountable, but also individuals will be held responsible. However, since it is not a legal obligation for residents to receive the neo-coronavirus vaccine, neither should suffer any disadvantage for a refusal to take the vaccine.
The person who has contracted the novel coronavirus pneumonia is an unfortunate victim. Currently, the State classifies novel coronavirus pneumonia as a Class B infectious disease in accordance with the Prevention and Control of Infectious Diseases Act and takes preventive and control measures for Class A infectious diseases. The state can take measures such as isolation and treatment for suspected or confirmed patients.
Only if a person refuses isolation treatment knowing that he or she has been identified as a suspected or confirmed patient, or is released from isolation treatment without permission before the expiration of the isolation period (of course, this situation is not likely to occur in reality at present), there is the problem of holding him or her legally responsible (see “Opinions of the Supreme People’s Court, Supreme People’s Procuratorate, Ministry of Public Security, and the Ministry of Justice on Punishing Illegal Crimes that Obstruct the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic According to Law ).
Failure to get vaccinated with the novel coronavirus does not create a legal liability. Moreover giving free treatment to those infected with the novel coronavirus only takes up part of the public resources, but it is necessary to protect public health, which is not an illegal cause. There is only a probabilistic connection between the novel coronavirus infection, vaccination and transmission of the novel coronavirus, not a necessary causal relationship.
- Since vaccination is so important, can the state set vaccination against novel coronavirus as a mandatory obligation?
Vaccination is one of the most effective measures to prevent infectious diseases. The question of whether to set it as a mandatory obligation involves two aspects: on the one hand, it is a question of possibility, which is a matter of law. To set vaccination with the novel coronavirus vaccine as a mandatory obligation is in fact to include the novel coronavirus vaccine in the national immunization program.
Article 41, paragraph 1 of the Vaccine Control Law states that “the competent Department of Health under the State Council shall formulate the national immunization plan; the types of vaccines in the national immunization plan shall be formulated by the competent department of health under the State Council in conjunction with the financial department under the State Council, and shall be reported to the State Council for approval and announcement“; paragraph 3 states that “the people’s governments of provinces, autonomous regions and municipalities directly under the Central Government may, in implementing the national immunization plan, increase the types of vaccines in the immunization plan according to the needs of disease prevention and control in their administrative regions, and then make a report to the competent health department of the State Council for the filing and publication“. Article 51 of the Vaccine Control Law also provides that “In the event of an outbreak or epidemic of an infectious disease, local people’s governments at or above the county level or their competent health and health departments need to take emergency vaccination measures in accordance with the provisions of laws and administrative regulations.”
In other words, the law has designated the procedures for mandatory vaccination, and also distinguishes between two sets of mechanisms for usual procedures and emergency procedures. Generally, to enforce vaccination with the novel coronavirus vaccine, it must be formulated as a national immunization plan vaccine by the National Health Commission in conjunction with the Ministry of Finance, and reported to the State Council for approval and publication. In emergency situations, the law only stipulates that the vaccine should be implemented “in accordance with the provisions of laws and administrative regulations,” and that local people’s governments or their health authorities can only implement it according to these provisions, not arbitrarily as they see fit. For example, the novel coronavirus vaccine has not been officially registered for marketing, but was conditionally approved for emergency vaccination by the State Council Health and Welfare Commission. Emergency vaccination also makes distinctions such as those between key protection targets, key recommended targets and general targets. The general target is other people who are voluntarily vaccinated.
On the other hand, there is the issue of necessity, which is both a matter of science and financial capacity. The State Council Health and Welfare Commission is the appropriate authority, but it does not have the appropriate scientific knowledge itself, and should consult the National Advisory Committee of Experts on Immunization Planning to determine the need for dynamic adjustment of the types of vaccines in the National Immunization Plan.
At present, only eleven conventional vaccines such as Hepatitis B vaccine, Hepatitis A vaccine and Measles vaccine are included in the national immunization plan. Whether or not to include the new crown vaccine is a matter of considering not only the infectious size of the novel coronavirus pneumonia, but more importantly, the characteristics of the new crown vaccine, and the strength of its financial capacity.
In terms of scientific issues, it may take some time to obtain sufficient experimental and empirical data to verify the degree of preventive effectiveness of the novel coronavirus vaccine, issues such as abnormal reactions, and whether the novel coronavirus is a phase or a long-term permanent problem. It is also unclear whether the new crown vaccine is a once-in-a-lifetime immunization or requires yearly vaccination. Therefore, it may not be the right time to discuss whether to include it in the national immunization program.
In addition, the main reason for including a vaccine in the national immunization program, in conjunction with the Ministry of Finance, is that the vaccine is provided free of charge and involves its affordability for the national treasury. The novel coronavirus vaccine is expensive, and if it is required to be given yearly, it is also by no means financially affordable. Therefore, the earlier and more vaccines that are included in the national immunization program, the better.
The current immunization situation is not easy to come by and needs to be maintained by many parties, but the central government has also ordered not to increase the number of layers and not to manage it as “one size fits all”. Since the novel coronavirus vaccine is still difficult to be included in the national immunization plan, the vaccination of the novel coronavirus vaccine will still be “voluntary”. The relevant localities can only follow the requirements of this attribute and take various measures to promote the vaccination of the novel coronavirus vaccine, such as popularizing related knowledge and encouraging mobilization, in addition to direct or indirect compulsory measures.
The author himself completed the vaccination on February 27 and March 20 of this year, and was among the first batch of vaccinators in his unit.
Published: 2021/8/23
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