Mandatory vaccination: is it legally possible?

Vaccination provides protection against serious diseases caused by bacteria, viruses, fungi or parasites. Through high vaccination coverage, a common group immunity can be achieved, protecting not only vaccinated persons but also those who have not been vaccinated. In 2013, the Netherlands achieved a vaccination coverage rate of 92 to 99 per cent for all vaccinations except HPV. This high vaccination rate was the result of the National Immunisation Programme, which aims to protect as many people against infectious diseases. Despite this programme, vaccination coverage for a number of infectious diseases fell below the 90 per cent deemed desirable by the World Health Organisation (WHO) for most vaccinations as of 2015. WHO argues that the cause of this is vaccine hesitancy. That means people are less willing or even refusing to be vaccinated. "This phenomenon is nothing new", says Buijsen. "We have seen it for some time in small religious communities but now it is spreading to wider layers of society."

Vaccination and fundamental rights

There is a fundamental social right to health that is protected in various ways. For instance, the Netherlands has a duty to prevent infectious diseases and to develop and implement programmes to do so. In this case, this legal obligation stems from the International Covenant on Economic, Social and Cultural Rights. Buijsen explains that this involves progressive realisation, meaning that vaccination rates among children must increase. With this obligation also comes the prohibition of regression: vaccination rates must not fall. If it does, it results in a violation of the prohibition on regression.

Vavřička-case

The European Court of Human Rights heard a case a few years ago involving fined parents for failing to comply with the legal obligation to vaccinate their children, which also resulted in denial of access to day care. 

According to Buijsen, the Court's ruling was in line with previous case law on the subject. Indeed, the Court stated that compulsory vaccination as an involuntary medical intervention is an interference with right to respect for private and family life. Nevertheless, this interference was deemed permissible by the Court as it was provided for by law and was committed because of a legitimate aim: to protect the health and rights of others. The Court also ruled that the interference could be considered necessary in a democratic society. These conditions must also be met for the interference to be considered legitimate.

Will the Netherlands introduce mandatory vaccination?

In his opinion, Buijsen concludes that compulsory legal vaccination is not likely to be objected to in the Netherlands. Presumably, it will not be introduced soon anyway, due to the lack of public support and real political will. "Moreover, not much should be expected from compulsory measures. In fact, experiences with both direct and indirect mandatory vaccination abroad are very variable and their vaccination rates are not always above the current Dutch ones", Buijsen said. "The decision not to introduce compulsory vaccination for children is entirely defensible given the varying experiences but that does not take away from the fact that the Netherlands is obliged by the right to health enshrined in international treaties to take effective measures."