Unvaccinated Medical Staff and the Question of Compulsion

Dr Eric Crampton
5 November, 2019

In a world without laws about fists meeting noses, it would make a lot more sense to prohibit us from punching someone else on the nose without their consent than to ban us from punching ourselves on the nose. It might make sense to ban both, but it would be ridiculous to start by banning people from punching themselves.

So why do public health regulations so often get this backwards? We have compulsion where information campaigns would make more sense, and we barely have information campaigns where compulsion is strongly warranted. And it leads us into simply absurd situations.

Working in a hospital, or at an early childhood centre, while unvaccinated is an awful lot like showing up to work, putting on a blindfold, and walking down the hallway with fists flailing. Whooping cough and measles can easily kill infants too young to have been vaccinated – or impose risk on the immunocompromised. And those infected can be contagious without knowing it.

If there is a case for compulsion in anything related to public health, that case seems strongest for vaccinating people likely to be in contact with the sick and with the unvaccinated. They impose substantial risk on others without consent, and with the potential for substantial harm.

Eloise Gibson reported for Newsroom that the public health system barely keeps track of whether workers at hospital are vaccinated. Only one DHB has complete, albeit out of date, records, and almost half the tracked workers there were not vaccinated against whooping cough. Hospitals, DHBs, and the Ministry of course encourage workers to be vaccinated, but do not compel vaccination as employment condition.

Earlier this year, we learned that ECE staff are not required to be vaccinated, that there is no requirement that ECE centres track staff vaccination, or that parents be informed about any of it.

Think for a moment about the wide array of policies undertaken in the name of public health, and how backward this all looks.

We have warnings on cigarette packages to inform smokers about risks. We have bans on smoking in places where smoking might impose some risk on others even if they consented to the risk (like a smokers-only bar). Packet warnings became graphic; we had public health campaigns, massive excise hikes, bans on smoking and even on vaping in outdoor places where the only harm to others is seeing a smoker or vaper, and bans on smoking or vaping in cars if younger people are in the vehicle. The vast majority of the harms of smoking fall on the smoker, but the state engages in a lot of compulsion around smoking and vaping – even in areas where protecting other people is not the reason for the policy.

We have warning labelling on alcohol, bans on operating motor vehicles while intoxicated, bans on consumption in places where drinkers may cause nuisance, heavy excise taxation, and increasingly stringent rules around where and when alcohol may be sold. Many of these are entirely legitimate in protecting other people, but much of the justification for excise – a form of compulsion – is to protect people from themselves.

We hear regular calls for sugar taxes and warning labels on sugary soft drinks. The Ministry of Health banned hospitals from selling sugary drinks, to protect patients; apparently a warning sign about not drinking too much fizzy drink would have been insufficient protection. Government has been leaning on the food industry to reformulate products to reduce salt and sugar content, with the threat of compulsion ever-lurking, despite existing mandatory nutritional labelling informing consumers about what they are eating. We have public health campaigns around diet and obesity. Information campaigns can fit well with helping people choose what’s best for them. Compulsion, like bans on sugary drink sales in hospital, goes further.

While there has been ample public funding for research into making cigarette packages less appealing, or discouraging drinking, or nudging and shoving people into healthier diets, figuring out how to encourage people to take up vaccination has not seemed to be anywhere on the list of priorities – let alone consideration of compulsory vaccination in those areas where potential harms to others are substantial.

Now it is possible that all of these public health measures are right and good and for the best in this, the best of all possible worlds. But if compulsion were going to start anywhere, it should start with the places where there is high risk of harm to others.

So how have we gotten to a spot where the Government is considering banning popcorn from ECE centres because of choking risk, but there are not even warning signs letting parents know that the centre employs unvaccinated staff? And where the Government is far happier to protect us against the dangers of buying a sugary drink at hospital than from unvaccinated hospital staff wandering the halls during a measles outbreak? People rarely accidentally consume a soda because someone sneezed a few minutes before they entered the room.

It is possible that the ban on popcorn makes sense, despite a sensible presumption that parents love their children and are packing the best meals they can for them. The Government could have considered an information campaign first – like pamphlets for distribution to parents about the risks of small foods in lunches. Same for the sugary drink ban in hospital.

But while it is hard to tell that either of those bans make sense, compulsion seems the lever that public health campaigners and government are quick to pull when it comes to decisions we make that affect our own health, and the health of our own families.

Meanwhile, it is easy to tell that unvaccinated ECE staff impose high risk on young children. It is easy to tell that hospital staff are at high risk of infection during an outbreak of anything and at high risk of passing that on to vulnerable people before they know they are ill. Despite that, there is not even a requirement that ECE centres inform parents about their staff vaccination status. I have never heard of graphic warning labels on hospitals letting patients know that the hospital neither requires staff to be vaccinated nor really bothers keeping track.

When Waikato DHB required unvaccinated staff simply to wear masks during a flu outbreak in 2016, the nurses’ union threw a fit. But did you hear a word about it from public health campaigners usually quick to object when vested interests oppose measures the campaigners view as improving public health?

The regulatory apparatus around public health has been quicker and happier to ban us from punching ourselves in the nose than it has been to ban others from punching us.

It is much harder to justify protecting us from ourselves than it is to justify protecting us from others. It could be that compulsion in both cases is warranted, but it seems impossible to justify focusing compulsion on the former rather than the latter.

When it comes to fists and noses, it is hard to get things wrong.

Banning you from punching me without my consent is obviously correct.

We can take a rights-based approach and say that your punching me violates personal autonomy, and that that should simply not be allowed unless I have consented to it.

Or, we can take a cost-benefit approach and say that it is incredibly unlikely that your enjoyment from punching me in the nose outweighs the harms I suffer from it.

Either way, it’s easy to make the case that banning you from punching me without my consent should be prohibited, and that the state should use compulsion to prevent you from doing it.

But it is not always easy to tell whether someone viewed from afar has punched himself in the nose, or scratched an itch, or swatted a fly. It is simply harder to tell whether paternalistic policy really makes people better off.

The calculus of public policy has wound up putting infinite weight on a hospital worker’s preference not to be vaccinated, regardless of the risk to other people. But if you’re in hospital with a broken leg and you’d really like a Coke, that enjoyment counts for nothing.

It is hard to make sense of any of it, unless you want to believe that public health campaigners are more interested in telling us all how to live our lives than in protecting us from the more traditional, and perhaps now passé, risks of contagious disease.

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