No legal basis for fines for not vaccinating

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Are mandatory vaccinations mandatory?  Author: Patryk Zbroja, advocate

 

The subject of vaccinations has been causing more and more controversy in Poland for several years. Also the legal one. Many parents, deciding not to vaccinate their children or to vaccinate them selectively, risk being fined.

In a democratic state governed by the rule of law, citizens have the right to expect that the rights guaranteed to them and the obligations imposed on them will be defined in a clear, exhaustive and beyond doubt manner. Any lack of precision or ambiguity is open to interpretation, and is thus open to abuse. Thus, if a citizen is required to perform a certain action, he must know what the action consists of, when and how to perform it, and what sanctions may be imposed for failure to perform it. If any of these elements are missing, enforcement of the obligation may be difficult, if not impossible. The obligation to vaccinate is defined in Article 5 § 1, point 2 of the Law on Prevention and Control of Infections and Infectious Diseases in Humans as follows: "persons residing in the territory of the Republic of Poland are obliged, under the rules set out in the Act, to undergo protective vaccinations". This provision implies only one thing - the persons staying on the territory of the Republic of Poland are obliged to undergo vaccinations. It is true that the regulation speaks of "the rules specified by the law," but in fact the law does not specify any further rules. Only Art. 17 of the Act refers generally to an executive regulation concerning persons subject to obligatory vaccinations and diseases for which there is an obligation to vaccinate. Meanwhile, the Regulation of the Minister of Health of 2011 on obligatory preventive vaccinations specifies, among others, the list of diseases covered by the obligation to vaccinate and the persons or groups of persons that are obligated to undergo vaccinations. Translating the provisions of the above regulation into a concrete example, the obligation to undergo preventive vaccination against tuberculosis covers children and adolescents from the day of their birth until they are 15 years old. This means that a child can be vaccinated against TB for the first time on the first day of life, as well as at the age of 15. Identical provisions apply to other diseases. At the same time, there is no mention in the law or in the regulation of when and what sanctions can be imposed on parents for non-compliance, so parents do not know what to expect if they do not vaccinate their child against tuberculosis. Nor does he or she know when to expect the consequences, whether on the second day of life or only after the child turns 16 (although the latter option seems far more logical). In a word, the Act imposes an obligation without specifying it in any way. The law does not tell us which diseases the obligation concerns, when the vaccinations should be performed and what are the sanctions for not performing them. In spite of this, the State Sanitary Inspection authorities impose fines on parents who do not vaccinate their children or who vaccinate selectively in order to force them to vaccinate, claiming that the obligation to vaccinate results directly from the Act, which gives them the possibility to apply the regulations of administrative enforcement. We cannot agree with this position. It turns out that the only act that specifies the obligation to vaccinate is an appendix to the Chief Sanitary Inspector's communication called the Immunization Program. It is not a law, it is not even an executive regulation and it certainly cannot be the basis for issuing decisions on imposing fines on parents.[bold ed.]At this point, it must be pointed out that the regulations governing the obligation to vaccinate, as they are now, have been in force since at least the early 1960s. They were created in a different legal order, in a different reality. As an infamous relic of the past, they function unchanged to this day, as if completely ignoring the fact that since 1997 Poland has had a Constitution in force, according to which limitations on constitutional rights and freedoms (and one of these is certainly the right to decide about one's own health and to undergo medical treatment) can be established only by law and only in strictly defined cases.
In a word, the obligation to vaccinate should arise from the law, be defined therein in an exhaustive manner, and its use should be justified by health protection - rationally and in accordance with the actual epidemiological situation in the country, which, contrary to the claims of the State Sanitary Inspectorate, has not changed for years and differs little from the situation in Germany, where vaccinations have long been recommended rather than mandatory.

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