Kamin-Friedman Shelly
Department of Health Systems Management, Faculty of Health Sciences, Ben-Gurion University of the Negev, Beer Sheva, Israel.
Isr J Health Policy Res. 2017 Oct 30;6(1):58. doi: 10.1186/s13584-017-0182-z.
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.
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.
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.
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.
2013年5月在以色列污水中检测到野生脊髓灰质炎病毒，促使卫生当局决定，已接种灭活脊髓灰质炎疫苗（IPV）的儿童也需接种口服脊髓灰质炎疫苗（OPV）。该决定旨在保护未接种IPV或患有免疫缺陷的以色列弱势群体，维护以色列无脊髓灰质炎国家的地位，防止病毒“输出”到脆弱的无脊髓灰质炎国家，并参与全球根除脊髓灰质炎的努力。经过大规模的公众劝导活动，2004年后出生的儿童中有79%接种了疫苗，居住在以色列中部的儿童中有69%接种了疫苗。2014年国家审计长报告指出，卫生部应从以色列某些地区的低接种率中吸取教训。
本文旨在探讨为根除传染病（与预防大流行疫情相对）而进行强制接种疫苗的法律合法性，这是2013年脊髓灰质炎事件的目标之一。它更具体地涉及以色列现行法律以及一项假设的新公共卫生法，该法将授权卫生官员强制接种疫苗并通过刑事制裁来执行。
通过解读法院判决、法律、立法协议、卫生部指南以及传染病和免疫咨询委员会的书面讨论进行定性内容分析。
根据以色列法律和判例法先例，为根除传染病而实施刑事制裁支持的强制接种疫苗可能会被视为比必要程度更大地侵犯了宪法规定的自主权利。一项新的公共卫生法可能具有一些附加价值，该法将授权卫生官员在非限制性措施无效时强制接种疫苗。然而，该法律还应规定一系列与强制接种疫苗执行相伴的制裁措施，这些制裁措施应根据“干预阶梯”概念从最低限制到最高限制进行制定。法律还应描述每种制裁措施实施的正当情形以及为既定决策设计的程序保障措施，以及对因实施这些制裁措施而权利受到侵犯的个人的公平性。
