1) The document discusses the legal and ethical duty of healthcare workers to be vaccinated in order to protect patients from harm. 2) While individuals have a right to refuse medical treatment, unvaccinated healthcare workers do not have a legal right to work in settings where they may expose vulnerable patients to risk of infection. 3) Voluntary vaccination of healthcare workers often fails to achieve adequate vaccination rates, so support, incentives, and in some cases mandatory vaccination policies may be needed to fulfill the duty of care to protect patients.

1. Vaccination of healthcare workers:
A legal and ethical duty of care?
International Nursing Congress 2013
Melbourne, Australia
Dr Marie Bismark LLB MBChB MPH MBHL
@mbismark
MELBOURNE SCHOOL of POPULATION
AND GLOBAL HEALTH

2. Page Title / heading goes hereVaccination of health practitioners
Patients
protected
from harm
Individual rights of
health practitioners
Legal & ethical
responsibilities
Patients
exposed
to risk of
harm

3. Page Title / heading goes hereRisk of harm
Patients
exposed
to risk of
harm

4. Page Title / heading goes hereRisk of harm.
Patients
exposed
to risk of
harm

5. Page Title / heading goes hereRisk of harm.
Patients
exposed
to risk of
harm

6. Page Title / heading goes hereProtecting patients
Patients
protected
from harm

7. Page Title / heading goes hereProtecting patients
Patients
protected
from harm
Other interventions are also important:
•hand washing
•personal protective equipment e.g. masks, gloves
•early detection
•staying home when unwell

8. Page Title / heading goes hereRights and responsibilities
Individual rights of
health practitioners
One of the core moral challenges of public
health is balancing individual liberties with the
advancement of good health outcomes.
Legal & ethical
responsibilities

9. Page Title / heading goes hereIndividual rights
Individual rights of
health practitioners
Both the common law and international human rights laws
protect the right of a competent adult to refuse medical
treatment, including vaccination.
“Everyone has the right to refuse to undergo
any medical treatment.”
Section 11 New Zealand Bill of Rights Act 1990

10. Page Title / heading goes hereIndividual rights
Individual rights of
health practitioners
However, unvaccinated health practitioners
do not have a legal right to work in settings
where they may expose patients to harm.
-newborns
-pregnant women
-immunocompromised patients
(NB: need to consider terms of
individual employment agreements)

11. Page Title / heading goes hereIndividual rights
Individual rights of
health practitioners

12. Page Title / heading goes hereLegal & ethical duty of care
“The law imposes on a [health] practitioner a duty to exercise
reasonable care and skill in the provision of professional
advice and treatment.”
- Rogers v Whitaker (1992) 175 CLR 479
Healthcare providers must "exercise that degree of care and
skill which could reasonably be expected of a normal, prudent
practitioner.”
- Crits v Sylvester [1956] SCR. 991
Legal & ethical
responsibilities

13. Page Title / heading goes hereLegal & ethical duty of care
“Every consumer has the right to have services provided in a
manner that minimises the potential harm to that consumer.”
- NZ Code of Health Consumers Rights
Legal & ethical
responsibilities

14. Page Title / heading goes hereLegal & ethical duty of care
http://www.scientificamerican.com/article.cfm?id=health-care-workers-flu-shot
Legal & ethical
responsibilities

15. Page Title / heading goes hereLegal & ethical duty of care
Breach of duty of care may lead to:
•Illness and complications among patients and their families
•Loss of trust in health service
•Patient complaint to commissioner or ombudsman
•Action by employer or Medical Board
•Medical malpractice litigation if breach causes patient harm
Legal & ethical
responsibilities

16. Page Title / heading goes here.
Young girl acquired smallpox after exposure at a Vancouver
hospital:
“While it may be difficult to provide against unknown danger, …
[the risk of disease transmission] suggests the need of rigorous
precautions with the view, within reasonable limits, of closing
every avenue from which danger might be apprehended."
McDaniel v. Vancouver General Hospital [1934] 1 D.L.R. 557
Legal & ethical duty of care
Legal & ethical
responsibilities

17. Page Title / heading goes hereVoluntary vaccination
Vaccination rates <50% among health practitioners in many countries
•Traditional strategies consistently fail
•Some professions (eg midwives) even lower than others

18. Page Title / heading goes hereVoluntary vaccination

19. Page Title / heading goes hereSupport and incentives
Vaccination rates 50 to 75% possible through:
•Providing vaccines free of charge
•Ensuring convenient times and places
•Demonstrating strong leadership support
•Offering incentives

20. Page Title / heading goes hereSupport and incentives
Babcock H M et al. Clin Infect Dis. 2010;50:459-464

21. Page Title / heading goes hereMandatory vaccination
Vaccination rates >95% achieved if mandatory
•Very few adverse events (sore arm most common)
•Exemption requests often reflect misconceptions e.g.
influenza immunization during pregnancy

22. Page Title / heading goes hereMandatory vaccination

23. Page Title / heading goes hereFirst, do no harm
http://www.thedailybeast.com/articles/2013/03/30/why-rubella-s-scary-comeback-should-convince-vaccine-
deniers.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+thedailybeast%2Farticles+
%28The+Daily+Beast+-+Latest+Articles%29

24. Page Title / heading goes hereVaccination of health practitioners
Patients
protected
from harm
Individual rights of
health practitioners
Patients
exposed
to risk of
harm
Legal & ethical
responsibilities

25. Page Title / heading goes hereSummary
1) Unimmunised health practitioners expose patients to risk of harm
2) Vaccination of health practitioners reduces risk of harm
3) Health practitioners have a legal right to refuse vaccination (but no
right to keep working with patients if unreasonable risk of harm)
4) Health practitioners owe patients a legal and ethical duty of care:
must take all reasonable steps to protect patients from harm
5) Voluntary vaccination consistently fails to achieve adequate cover
6) Support and incentives can and should be widely implemented
7) In some situations mandatory vaccination policies (with ability to
apply for exemption) may be legally and ethically justified

26. © Copyright The University of Melbourne 2006