COURT SAYS COVID-19 VACCINATION MANDATE FOR STUDENTS IS LEGAL

Early this week on Tuesday, a U.S District Court Judge Damon Leichty in South Bend, Indiana, has rejected the argument by eight students that the school violated their bodily autonomy and constitutional right to due process.

In a statement to the public, Indiana University stated that,

"With the ultimate goal of returning our campuses to normal operations, beginning with the fall 2021 semester, all Indiana University (including IUPUI) students, faculty and staff will be required to have a COVID-19 vaccine and be fully vaccinated before returning to campus. This requirement is part of IU’s ongoing successful response to and management of the COVID-19 pandemic on its campuses and will allow the university to lift most restrictions on masking and physical distancing."

However, the students sued last month and asked Judge Leichty to block the school's requirement that students, faculty and staff be vaccinated or receive an exemption. Exempted students must follow separate COVID-19 mitigation strategies.

"This university policy isn’t forced vaccination," ruled the judge.

"The students have options -- taking the vaccine, applying for a religious exemption, applying for a medical exemption, applying for a medical deferral, taking a semester off, or attending another university."

In his ruling, U.S. District Court Judge Damon Leichty in South Bend, Indiana, rejected the argument by eight students that the school violated their bodily autonomy and constitutional right to due process.

Leichty, said had the students shown a likelihood that the university was infringing unreasonably on constitutional rights, blocking the policy would have been in the public interest. But he said the students "have a low likelihood of success" of proving that.

This comes at a time when the country is still grappling with the coronavirus pandemic where schools were registered as the biggest hotspots for the virus hence prompting a lockdown, in his lockdown speech President directed that,

"All schools and institutions of higher learning to close for 42 days effective 8 am, 7th June 2021. and All teachers to fully get vaccinated before they are accepted in schools."

The president's directive reinforced the order issued the Permanent Secretary to the Ministry of Education and Sports, Mr Alex Kakooza, in an April 23rd letter to all stakeholders in the education sector that,

"Heads of education institutions are required to mobilise and support all their teaching staff to get vaccinated against Covid-19 as soon as possible. You are advised to contact the management of Covid-19 vaccination services centre nearest to your institutions and make the necessary arrangements to have the teachers vaccinated,"

The directive reads in part.

What does the law say?

Even though most vaccine skeptics(people who are against the vaccine) are sticking to the legal principle of informed consent which first arose in the context of assault and battery in civil tort procedures. The law recognizes an individual's right to have "complete immunity of his person from physical interference of others....

Any unlawful or unauthorized touching of the person of another...constitutes assault and battery".

In other words, a patient's consent must be given, either expressly or implicitly, before a physician may legally "interfere" with the physical body of the patient.

Hence, in past tort cases, physicians have been found guilty of assault and battery because they did not allow their patients to be the final decision makers about undergoing a medical procedure.

Consent is also needed because the physician and the patient are entering into a contract in which the physician will employ skills and judgment to bring about desired results and, in return, receive payment from the patient. Contracts demand consent of all parties, making a patient's knowledge of what he or she is consenting to essential.

Informed consent became a vital part of patients' rights in U.K case of Montgomery v Lanarkshire case of March 2015 where Nadine Montgomery, a woman with diabetes and of small stature, delivered her son vaginally; he experienced complications owing to shoulder dystocia, resulting in hypoxic insult with consequent cerebral palsy.

Her obstetrician had not disclosed the increased risk of this complication in vaginal delivery, despite Montgomery asking if the baby’s size was a potential problem. Montgomery sued for negligence, arguing that, if she had known of the increased risk, she would have requested a caesarean section.

The Supreme Court of the UK announced judgment in her favour in March 2015. The ruling overturned a previous decision by the House of Lords,2 which had been law since at least the mid 1980s.3

It established that, rather than being a matter for clinical judgment to be assessed by professional medical opinion, a patient should be told whatever they want to know, not what the doctor thinks they should be told.

This is not any different from the U.S decision way back in the 1970s, in the landmark case of Canterbury v. Spence . where the court held in that case that

"the patient's right of self-decision shapes the boundaries of the [physician's] duty to reveal".

The court found that a patient must be fully informed by the physician or other health care provider so that he or she can make an intelligent choice as to which medical procedure, if any, to undergo.

Physicians must communicate to their patients information that is "material" to the decision at hand, including all risks associated with the procedure that might sway the patient's decision. A risk is "material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy".

In other words, if a physician fails to inform a patient of risks that he or she knows are important or that may have an impact on the patient's decision about the proposed therapy, then the physician is legally liable for not fully informing the patient.

What are the Exceptions if that is what the law says?

There are two exceptions to this rule. The first exception comes into play when the patient is unconscious or otherwise incapable of consenting, and the possible harm from a failure to treat outweighs the harm from the proposed treatment.

The second exception, known as the therapeutic privilege principle, acknowledges that in some situations the disclosure of certain risks would not be in the patient's best medical interest. This principle must be exercised with great care and discretion and should not be used as an excuse to withhold bad news. It applies only when, in the physician's clinical judgment, disclosure would exacerbate the patient's condition.

By

Annet Namusisi ( A student of Journalism at MAK)

and

Waboga David (A student of Law at UCU)