Legalities Around the Taking or Refusal of Vaccines & Medical Treatment

It has been it is almost a year since the first COVID-19 case was reported in South Africa. Given the devastating impact of this virus, the endeavours to find effective vaccine, treatment and cure have been ongoing, world-over. To date, there are several vaccines that have been manufactured and are already being distributed to countries around the world. South Africa, the most affected nation in Africa, has also received its first batch of vaccines, with many other batches expected to arrive. The COVID-19 pandemic, like most epidemics, has not been short of conspiracy theories.

Scepticism of the Covid-19 Vaccine

This has led to a greater scepticism insofar as the taking of vaccines is concerned. This scepticism is not only dangerous because of the ever-growing numbers of infections but, also, more deaths are inevitable, and a third wave of infections (with its catastrophic health and economic repercussions) may result, as some medical experts have warned. With conspiracy theories making waves, South Africans have been anxiously waiting to hear whether receiving vaccines will be made mandatory in the country. The President confirmed that vaccination is going to be voluntary and no one is going to be forced to vaccinate. This announcement has triggered a lot of questions, for example, whether employers can compel employees to be vaccinated before returning to work; whether jobseekers will be required to declare whether they have been vaccinated and, if not, whether their chances of being employed will be crippled, etc. It is for these reasons why it is critical to look into what the law says about people’s choice to be vaccinated.

Covid-19 vaccine and the law

The starting point is the Constitution of the Republic of South Africa, 1996, specifically, Section 12(2)(b) which grants everyone the right to bodily and psychological integrity – which includes the right to security in and over control over their bodies. This right is intertwined with the other constitutional rights such as the right to human dignity. In the context of vaccinations and medical treatment, one may consider rights to religion, culture, etc. The State has a duty to protect people and provide medical services. Also, all constitutional rights are not absolute and are subject to limitation as per Section 36 of the Constitution. The limitation, however, must be regulated and cannot be irrational and arbitrary. Further, there are various legislations that permit medical treatment/procedures without the concerned person’s consent (and thus forced). Examples of such legislation include: National Health Act; Sterilisation Act; Termination of Pregnancy Act; etc. There is also plethora of cases where Section 12 of the Constitution has been brought to the fore and argued at length in our courts. In some cases, the courts have found it justifiable to limit the right to bodily integrity, whereas, in other cases, it has found it unjustifiable. Therefore, the legal position is that a person has the right to bodily and psychological integrity and must give free, informed and voluntary consent to medical treatment/vaccination, however, there are legal grounds upon which this right may be limited.

Vaccination/Treatment in Light of a Pandemic

The National Health Act, Section 7, is a pertinent legal source in this instance. Section 7(1)(c) states that health service may be provided without informed consent where there is a law or court order permitting it. Considering that we are in a state of disaster and the laws have been made and amended “as we go along”, a law authorising vaccination without consent could be promulgated (unless successfully challenged) or the government could approach a court to obtain an order authorising vaccination without consent. Furthermore, Section 7(1)(d) states that medical service may be provided without consent where failure to treat a person, or group of people, will result in a serious risk to public health. The nature of the COVID-19 virus and the manner in which it moves and spreads around could instigate the government to compel people to vaccinate. In fact, there is case law which would support the government in this regard – that of Minister of Health v Goliath. In this case, the respondents who had been diagnosed with an extremely contagious TB were refusing to comply with the necessary medical directives and the Minister of Health sought an order compelling them to be detained in a suitable facility. Although the court considered, to a great extent, Section 12 of the Constitution, the Minister of Health succeeded in the case as the court took cognizance of the State’s duty to control and obliterate the spread of communicable diseases. The court found the actions of the Minister of Health to be in greater public interest and concluded that the rights of the respondents could be justifiably limited.

With the aforesaid, it is clear that the law does permit the government to compel vaccination where legally permissible. The President may have directed that there will be no forced vaccinations, however, different contexts may dictate otherwise. We may also see court cases relating to this topic and, there may be sound grounds for forced vaccination, especially that relates to greater public interest.

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Mtho Maphumulo
Senior Associate | Litigation Attorney
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