by revere, cross-posted from Effect Measure

In an earlier post I said I opposed mandatory vaccination for adults (but not for children), the one exception being for health care workers because they come in contact with people at high risk. My view then was that if you work in a health care institution and won’t get vaccinated against flu, then you shouldn’t come to work. Now I am re-evaluating my position as a result of some cogent and pragmatic comments from lawyer-bioethicist George Annas, professor of health law, bioethics and human rights at Boston University School of Public Health, and author of “The Rights of Patients.” I know Annas to be pro-vaccination and unambiguous about mandatory vaccination for children. His (and my attitudes) about adults is that there is a primacy to the principle of autonomy, as bioethicists frame it, and that no one who is competent to decide for themselves should be legally forced to be vaccinated. But we differed on the matter of health care workers because I felt that while they might be able to decide for themselves, they had no right to put their patients at risk. But Annas has argued — I think persuasively — that legally requiring vaccination for health care workers would backfire:

Surveys have noted an erosion in public trust of government officials, but continued confidence in physicians and nurses. In this context, persuasion based on science, ethics and prudence, not on legal threats, should be the mandatory course of action for public health officials.Physicians and nurses, educated and licensed professionals, dedicated to their patients’ health and welfare, do have an ethical obligation to take all reasonable steps to protect their patients. During a threatened flu pandemic, like swine flu, this includes, I think, getting a swine flu vaccination.

So why not require vaccination if they refuse? There are at least four reasons.

The first is symbolic: The practice of medicine (and nursing) is a voluntary one based on informed choice – and will hopefully remain this way. Forcing physicians and nurses to become unconsenting patients – even for a flu shot – undermines the consensual nature of the health care relationship, and at least suggests that if health care professionals can be forced to take a vaccination for the good of others, perhaps everyone else can, too.

The second reason is pragmatic. We are likely to get more physicians and nurses vaccinated in a well-planned and executed voluntary program (including providing the vaccinations at staff meetings, for example), than in a forced program that will draw and energize opposition.

Third, if enough physicians and nurses refuse vaccination, the mandate will be unenforceable, since no responsible public health official would try to close a hospital for failure to comply with the mandate in the midst of a flu epidemic.

Fourth, the requirement that physicians and nurses be vaccinated as a condition of practicing medicine and nursing in health care settings will predictably confuse the public when clarity is critical.

The public will reasonably ask, if physicians and nurses won’t voluntarily take the swine flu vaccine, why should I? Do they know something I don’t? (George Annas, Opinion piece in Newsday [Long Island, New York]) 

I don’t think I’d put them in the same order, but all of them have some force. The most persuasive to me are the purely pragmatic concerns of reasons number two and three (but I’d reverse the order). In a setting of human resource shortage it’s an unenforceable requirement. I also agree that a health care worker who doesn’t get vaccinated is acting unethically and unprofessionally, like one that doesn’t wash his hands between patients. The question of confusion (reason 4) comes next and Annas’s symbolic concern is important but doesn’t top the list for me. My concerns are pragmatic and his arguments make sense to me.

Annas’s concern in this instance, as it has been throughout his long career, is that we shouldn’t be turning an ethical obligation of health care workers into an arbitrary and perhaps counterproductive legal one (he wonders why it is just necessary for swine flu and wasn’t necessary for seasonal flu, a good question, I have to admit). His view is that we will get a better result if we work with medical and nursing organizations (including licensing boards, if appropriate) to explain the reason and need for vaccination. If that doesn’t work, he fears that legal coercion will not improve matters but make it worse. [see also the excellent piece by Peter Sandman and Jody Lanard on this general topic].

I think he persuaded me, especially as his penultimate paragraphs show that his view and mine aren’t fundamentally different:

And to the extent that the [New York State Health] commissioner wants to protect health care workers themselves, the focus should not be entirely on vaccinations, but should include the health care institution environment, including hospital infection control procedures, adequate supplies of respiratory masks, and reasonable sick leave and worker compensation policies.The ultimate measure of success or failure of a swine flu vaccination program will be in lives saved and lives lost. The most effective way to maximize the numbers of the public being vaccinated is to send the message that physicians and nurses believe this is the most reasonable approach to take to prevent wide-scale death and disease from the swine flu.