Many thoughtful Australians, from all occupations, generations, and social circumstances, and a wide spectrum of political beliefs, are asking questions that raise serious ethical issues in relation to how we are and should be dealing with the Covid-19 pandemic. These questions include:

  • Should we use vaccination “passports” that allow access to some government services and public venues to the vaccinated, while prohibiting those services to others?
  • What are the ethics of denying services or rights to some people based on their personal health decision not to be vaccinated?
  • Should employers be allowed to refuse jobs to the unvaccinated?
  • Would that set precedents for them to refuse to hire people with other conditions, such as disabilities?
  • Should unvaccinated people be denied entry onto public transport?
  • Should the greater good prevail over respect for individual rights when they are in conflict in dealing with COVID-19?
  • Does the state have an obligation to protect the unvaccinated, such as children, against the health-care decisions of the few?

I should point out here that I do not include among the thoughtful people asking these questions, either the adamant “anti-vaxxers” or the very conservative libertarians — who, unfortunately, include some senior academics.

Both groups can have irresponsible knee-jerk opposition reactions to the imposition of any mandatory limitations on their freedoms or what they see as their rights, and can even seem to delight in contravening these limitations. Unusually, this shared opposition results in a rare consensus among people with “progressive values”, who are on the far-left wing politically, and those with “conservative values”, who are on the far-right wing politically.  

The dual powers of the state

The state is a major player in protecting public health. It has two legitimate powers relevant to dealing with the COVID-19 pandemic: the “parens patriae” power and the “police power”.

In Australia, “the state” encompasses both the Commonwealth government and the State and Territory governments, and each has both “parens patriae” and “police” powers in the areas of jurisdiction allocated among them by the Australian Constitution.

Because this is not an article on Constitutional law, I will not discuss jurisdictional issues and will use the term “the state” to speak generally about all state interventions in relation to the COVID-19 pandemic.

‘Parens patriae’

The “parens patriae” power creates the duty of the state to look after those unable to look after themselves. It is a protective power that encompasses providing healthcare, care for elderly persons and those with disabilities, children’s education, and so on.

It derives from an ancient prerogative power of the King, as the “good parent” of his subjects, “to look after those unable to look after themselves” — that is, vulnerable people. As recently as the 1930s, these people were defined, in now repealed laws in many jurisdictions based on the English common law, including Australia and Canada, as “infants, lunatics and married women”.

The “parens patriae” power was delegated, for example, to the Australian and Canadian governments and their superior courts, when they became self-governing autonomous nations and adopted a legal system based on the English common law.

We always need to keep in mind that while the “parens patriae” power is meant to be protective, it can be appallingly misused. A powerful example in both Australia and Canada is the “stolen generations” of First Nations children separated from their families, purportedly for the benefit of the children. As we recognise in defending human rights, “Nowhere are human rights more in danger than when we act purporting to do only good.” Our intense focus on the good we hope to do can blind us to the unavoidable harms and risks involved.

‘Police’ power

The state’s other power relevant to protecting public health is the “police” power. This elicits the duty to keep citizens safe, and the corresponding right to take the measures necessary to do so. It is the power exercised in the Defence portfolio, border control, responses to national emergencies, crime control, some mental health interventions, and implementing measures such as infectious disease control and quarantine to protect public health.

It was not an accident that, until relatively recently, many public health doctors were ex-military men and, in contrast to Australia today, there were few, if any, women public health doctors, such as the admirable Dr Kerry Chant in New South Wales.

In Canada, for example, these men often worked as prison doctors or undertook public health roles in government. They were not noted for their compassion — indeed, in my experience, the complete opposite. They were used to being obeyed and not used to having their decisions questioned. As a member of the Canadian National Advisory Committee on AIDS, in the early days of the HIV/AIDS epidemic, I did battle with one of them, a government bureaucrat in the Canadian Ministry of Health. He used to sneeringly call me “Ms Lawyer” and preface announcements he knew I would oppose with “Ms Lawyer will not like this, but …”, and then announce some intervention with which I disagreed on legal or ethical grounds.

It is worth noting with respect to the use of Australian Commonwealth and State governments of their “police powers” in relation to the COVID-19 pandemic that the Australian Defence Forces and the police have both been called in to implement the restrictions put in place. Moreover, the person in charge of the vaccine rollout is a senior military officer, Lieutenant General John Frewen.

There are legal and ethical limits to the state both using the police power and the extent to which it can be used legitimately. A ruling by the Supreme Court of Canada gives useful guidance with respect to the limits on the state’s legitimate use of its police power in a public health situation. The judges ruled that:

  • its exercise must be non-arbitrary — that is, its use must be clearly connected to addressing the public health need to which it is directed;
  • it must not be overbroad — that is, it must be limited to addressing that need and not involve unjustified collateral damage;
  • and its effect must not be disproportionate — that is, the benefits of using the power clearly outweigh the harms and risks of the restrictions imposed.

Dealing with the Delta variant of Covid-19 can certainly merit the judicious and ethical use of the state’s police power to impose restrictions to stop the spread of the virus.

Some situations presented by Covid-19 involve the state engaging both its “parens patriae” and police powers. A prime example is mandating vaccination for all workers in aged care. In implementing that order through using its police power, the state fulfils its “parens patriae” duties to protect vulnerable people unable to protect themselves.

Collision of individual rights with the common good

The problem for “progressive values” adherents in the state’s use of its police power is that their overriding governing principle of respect for individuals’ rights to control and choose what happens to them — that is, the dominance of “expressive or radical individualism” and rights to individual autonomy — is challenged.

The problem for libertarians who oppose coercive state interventions to control the spread of COVID-19 is that they believe the state has no place in dictating what they see as purely personal and private matters. In short, the state has no legitimate place interfering in the family or personal privacy, which includes healthcare decisions.

In both cases, respect for individual rights collides with what is needed to try to control the spread of Covid-19 in order to protect others — namely, to respect and promote the “common good” and to act in the “public best interests”.

Consequently, in both cases, something has to give.

I propose that it is individual rights, which may be legitimately breached to the limited extent necessary to protect others. The philosopher Peter Singer, who is a leading proponent of rights to individual autonomy, agrees. In a recent article in the Sydney Morning Herald, he argued that vaccination against Covid-19 should be mandatory.

In making this proposal, I am assuming that the vaccine used is safe and effective, and that its benefits clearly outweigh its harms and risks. That assumption raises many ethical issues, which cannot be discussed here, but, at the least, it demands fully adequate, continuing medical and ethical oversight and research on Covid-19 vaccination.

When can the state coerce its citizens?

The ethical analysis should, I suggest, start with a basic presumption of respect for individual rights, but allowing some exceptions. That is, there should be no breach of individual rights — for example, to refuse vaccination — unless it is clear that this is the only reasonable way to protect public health and the public in general from serious harm or a serious risk of such harm, and the intervention is likely to be effective in achieving its stated goal. I call this a “no, unless …” basic presumption.

The choice of basic presumption is important, because if there is equal doubt as to whether an exemption can be justified, the basic presumption governs. This means that under a “no, unless …” basic presumption — in this case, “no, mandatory vaccination is not ethical unless …” — mandatory vaccination would not be justified in situations of equal doubt as to whether the “unless” requirements have been fulfilled.

If the presumption were “Yes, mandatory vaccination is ethically acceptable, but not if …”, whatever restrictions on mandatory vaccination the “if” would promulgate (I call this the “Yes, but not if …” presumption), then in situations of equal doubt as to whether the exemption from the basic presumption applies, people would be mandatorily vaccinated.

Note that the opposite decision results in exactly same factual situation, depending on which basic presumption is employed.

The major downside risk of the “no, unless …” presumption is that the public health decision-makers, especially politicians, will act too slowly to impose the necessary limitations to protect public health, as it has been alleged has happened in New South Wales. The major downside risk of the “yes but not if …” presumption is that these decision-makers will act too quickly and impose unnecessary limitations, as some people claim has happened in Western Australia.

Which risk it is ethically preferable to take depends on all the circumstances and having the best available facts, especially in situations of unavoidable uncertainty, such as is presented by the Covid-19 Delta variant.

Mandatory vaccination programs

Whether mandatory vaccination, in general, is ethical is an open question and, again, a response depends on all the facts and circumstances in any given case. We always need to keep in mind that good facts are necessary for good ethics, and good ethics for good law. In my opinion, making vaccination a condition of employment can be ethical in certain circumstances.

However, that said, because it is at least quasi-coercive — the choice is accept vaccination or lose your job or be prohibited from leaving your home in a Covid “hot spot” area to undertake work, as is true for tradespeople in western Sydney — it raises questions of the voluntariness and, thereby, the validity of informed consent to vaccination in such circumstances.

In contrast, I suggest that needing to have a vaccine certificate to attend a sporting event or concert is of a different order and justified, with some very narrow and rare exceptions, if any exist, for people who should not be vaccinated for serious health reasons.

The acceptability of a mandatory vaccination order can also depend upon who makes it. For example, the state may have the power to require mandatory vaccination as a condition of employment, but an individual employer in the same workplace might not. Moreover, the employer can be caught in a difficult situation of conflict between legal duties to provide a safe workplace for all employees and legal duties not to wrongfully discriminate on the grounds of disability in offering employment opportunities or avoiding wrongful dismissal claims. And what if employees refuse to work unless all employees are vaccinated?

Moreover, could, as is being discussed in some North American legal bulletins, an employee who wilfully refuses vaccination be liable to other employees in negligence for transmitting the virus to them? Or, as some American “condominium lawyers” are exploring, could the strata committee of an apartment building require all residents to be vaccinated on the grounds that sharing common areas is unavoidable?

A crucial requirement for all decision-making dealing with Covid-19, especially mandatory orders, whether by politicians, public health authorities, healthcare professionals or community leaders, is earning and maintaining the trust of those affected. Blind trust (of the sort, “trust me because I know what is best for you”) will not work to combat Covid-19.

Dealing effectively with the virus requires earned trust (“trust me because I will show that I can be trusted”). Earned trust demands honesty, integrity, transparency, the courage to say “I don’t know” rather than dealing with unavoidable uncertainty by converting it to false certainty, accepting warranted blame and apologising, and so on. It is important to keep in mind that earned trust requires mutuality: when it is earned by our decision-makers, we must confer it.

In conclusion

To summarise my position, justified public health protection orders that do not involve bodily invasion — such as lockdowns and wearing masks — and, with further justification, some of those such as mandatory vaccination that do involve bodily invasion can be ethically acceptable. Privileging those who are vaccinated, especially as an inducement to be vaccinated, can also be justified provided everybody who wants vaccination has reasonable access to it and the human rights of those who are not vaccinated are not violated by their exclusion from the privilege, such as attending a music festival or sports event constitute.

The two bottom-line ethical principles in responding to the Covid-19 pandemic are, in my view, to use the least restrictive, least invasive alternatives reasonably available and likely to be effective to prevent a serious harm or risk of serious harm to individuals or the public at large. There is no doubt that the Covid-19 Delta variant involves such harms and risks. When there are no “no harm” options in dealing with Covid-19 — a situation called in ethics “a world of competing sorrows” — and we must decide who will be harmed, a preferential option in favour of the most vulnerable, weakest, most in need persons should govern the decision making.

This article has been republished with permission from ABC Religion & Ethics.

Margaret Somerville is Professor of Bioethics at the University of Notre Dame Australia School of Medicine (Sydney campus). She is also Samuel Gale Professor of Law Emerita, Professor Emerita in the Faculty...