A matter of public order

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By JORGE LUIZ SOUTO MAIOR*

There is a social duty with regard to vaccination, as the immunization policy only achieves effective results with the adherence of all people

It has not been an easy task to convince unbelievers that vaccination against COVID-19 is a public health imperative from which they should not depart. Denialists cling to all kinds of arguments for not submitting to vaccination, ranging from saying that the virus was a malevolent creation to enslave people, or that it is an invention by China to dominate the world, passing through consideration that the vaccine is experimental and that it can turn people into alligators, to the point, strictly legal, of defending the decision not to be vaccinated as an expression of individual freedom, an inalienable right of every citizen.

This last argument, whether we like it or not, whether we agree with it or not, is a legally relevant argument and cannot simply be disregarded. It requires a more direct and consistent objection.

The fact is that, as has long been enshrined in the legal sphere, the freedom of one ends when the opposite freedom of another begins. In this clash of legally qualified interests, with public order issues on the one hand, these tend to overcome merely individual interests.

And that's not all, because what opposes the individual option of not vaccinating is not just the collective interest of others, but, more precisely, the duty that all people have - and which constitutes the basic legal relationship of the social being - to respect the basic rules of social life. There is, therefore, a social duty in relation to vaccination, since this constitutes the public immunization policy, which only achieves more effective results with the adherence of all people.

The act of not vaccinating, therefore, before being or not an individual right, is a boycott of the social duty, based on the collective preservation of life, to which everyone, without distinction, is subject. And even if it is understood that those who do not get vaccinated do not intend to destroy the lives of others, that is, even admitting that their decision is based on the belief that the vaccine does not save lives or that it can cause harm, the equation does not change, because the agent's will or perception of reality does not impact the legal assessment of his act.

In any case, what the non-vaccinated have to support the formation of their will is just a personal impression, or, as said, a belief, while with regard to the importance of the vaccine, what we have are concrete, scientifically observable data.

When all these aspects are added, the unequivocal result is the annihilation of the supposed right not to be vaccinated, not least because, even legally speaking, no one has the right to take their own life and even less to put the lives of others at risk. , interfering with the effectiveness of public health policy to face a pandemic. The fact is that the decision not to get vaccinated, seen from all angles, is not a value that has legal support.

The big issue is that legal answers are meaningless in the abstract world. They need to be effective in order to reach concrete reality. And if it is irrefutable to conclude that there is no right that accepts the decision not to be vaccinated, this is not to say that the non-vaccinated person can be forced to undergo vaccination. From this boundary of the preservation of intimacy, the challenge of establishing legal consequences for the act – which is also legal – of not being vaccinated arises.

The big problem I see at this point is that of invoking legal devices of an authoritarian nature that, without proper generalization, end up reproducing – and even legitimizing – our greatest social vices: discrimination; oppression and exclusion. Well then. First, it is important to reiterate that the legal implications can be fixed not only considering the effects of the acts (or omissions) practiced, but also by the risks to rights that they generate and, in these aspects, responsibility is evaluated objectively, which means that, for attributing effects, the agent's will is not investigated, except as an aggravating element.

As the decision not to get vaccinated ends up being, with or without this intention, a stimulus for others to act in the same way, individual deliberation negatively interferes with the evolution of the collective confrontation of the pandemic. Therefore, the restriction measures for non-vaccinated people are perfectly valid, provided that they apply to most people in this social group, such as vaccination passports and restricted access to public places.

These measures, however, continue to stimulate debates on the conflict of fundamental legal norms. In addition, they have been shown to be ineffective in generating the most relevant concrete effect, which is vaccination, given their low level of coercion in most cases.

So, in view of the unvaccinated people's stubborn belief that they are legitimately exercising their inalienable right to individual freedom and the low effectiveness of restrictive measures of freedom of movement that even renew the "certainty" in denialists that they are victims of oppression of the State and the collectivity that acts at the service of the system, it is necessary, and urgent, to take a step further, bringing up the subject of civil liability, even so that one can speak in a language that is the one that is best understood in the world capitalist, that is, the effect on the pocket.

Now, concretely, we are no longer at the stage (if we ever were – at least from a scientific point of view) of discussing the effectiveness of vaccination to face the pandemic. Real data unequivocally demonstrate that vaccines (all of them) are being effective in combating the harmful effects of the contagion of the new coronavirus.

Even with the advent of a new wave, where the virus spreads much more easily and quickly, the number of deaths, proportional to the contagion, has been many times lower than in the period when the population (at least most of it – 70%, to be exact – in current numbers) had not been vaccinated.

And, according to the same data, the most harmful effects (deaths and longer hospitalizations) have been felt almost exclusively by the unvaccinated. The numbers show that the unvaccinated account for more than 90% of deaths and the longest hospitalizations in ICUs.[1]

Does this situation reinforce this group's argument that its decision only harmed its own members? No, quite the contrary! What we have as a result is that the unvaccinated are harming millions of people and in the most varied ways. Let's think objectively.

Let's see, firsthand, the suffering they cause to friends and relatives and to society as a whole, because, after all, lives matter. Then, let us see the additional sacrifices they are imposing on health agents, who, already exhausted after two years of inhuman work, continue their intense and insane activity to care for thousands of people who, if they were vaccinated, would not be in the conditions health they are in. How many health professionals are getting sick due to the work overload caused by unvaccinated people? Incidentally, it is worth mentioning that from the moment this public identity was implemented, health professionals, previously treated as heroes and heroines, even if rhetorically, became the target of physical aggression by “patients” and their relatives.[2]

Let us also think of the high cost that has been borne by the State to promote free vaccination of the population, but this cost has been partially wasted by the attitude of about 30% of the population that refuses to be vaccinated. And that's not all. One must also think about the additional social cost generated by the hospitalization of unvaccinated people, which already overload the health system as a whole.

In this aspect, by the way, it is necessary to consider all the lives that are being sacrificed or put at risk, since a large part of the State's expenditures on public health that could be directed to other purposes is being destined to the care of the unvaccinated. The fact is that if the unvaccinated consider that they are within their rights, they should at least bear the economic consequences of their act. The mathematical effect of his decision is a considerable increase in the social cost. Thus, the other side of the coin of the decision not to be vaccinated is the obligation to indemnify the State and society for the damage caused.

The figure of social damage (also treated, more restrictively, as “collective moral damage”), which was initially presented in the lectures of the professor of civil law at the Faculty of Law of the University of São Paulo, Antônio Junqueira de Azevedo ,[3] and which was built with the advent of the new Civil Code, in 2002, especially when referring to the social and economic effects of acts contrary to the legal order, it is fully applicable to the case.

Whoever generates damages to the treasury and to society must repair them, and, in this case, the repair would be done by supporting the additional cost imposed on health services. It is therefore up to the legal responsibility that is motivating the performance of the service in duplicate that the State is providing to a specific social group, even to the detriment of the health treatment of the other group, those who have already been vaccinated. A similar position, but through more controversial legal instruments, was assumed by the province of Quebec, in Canada.[4] And also in Austria.[5]

The public civil action, regulated by Law 7.347/85, envisioning the objective responsibility of this specific social group, is an effective instrument for that. But this responsibility could also be fixed in a specific law.

The responsibility in question is not linked to individual repercussions, but rather to the decision not to be vaccinated, which, in itself, generates all the aforementioned effects. Thus, it is not a factor that removes responsibility from the fact that the person included in this group has been infected, or not, or even that he has only used a private health service for his treatment. The attitude of not getting vaccinated, or not completing the vaccination cycle, reflects a collectively assumed position that attracts more people to the same “hole”. The identity of this group, which constitutes the legal bond of solidarity that unites them, is therefore the act of not being vaccinated, regardless of the motivation and concrete individual effect, excluding people whose vaccination was inadvisable for medical reasons, scientifically accepted.

Compensation must consider the economic differences of the group members. It is therefore necessary that the economic effects are more serious for those who boast earnings above the national average, in order to even generate a consequence that can effectively be felt by the wealthiest anti-vaccine.

The idea is to divide the added social cost among the members of this group, with those with incomes equal to or above the national average paying almost all of this cost, so that poverty is not once again penalized. Thus, the unvaccinated group would bear the economic consequences of their act, including the affectation of their assets, in case of death. What is not presented as fair and correct is that the additional cost to public health, promoted by those who are not vaccinated, is borne by those who have been vaccinated.

And if there is this civil responsibility of those who have not been vaccinated, there is, unequivocally, administrative responsibility of those who should promote vaccination and did not do it in due time and manner, in addition to the criminal responsibility of those who encouraged (and still encourage) people not to get vaccinated.

When the institutions return to work in Brazil, who knows, maybe the legal order will be respected and who knows, maybe we will finally be able to face the fundamental questions that concern the public, equal and free access of all people to the goods necessary for the preservation of health and life, establishing, therefore, an effective public policy for the preservation of health and, above all, overcoming the model of commodification of life and privatization of science and knowledge, starting with the breaking of patents.

*Jorge Luiz Souto Maior is a professor of labor law at the Faculty of Law at USP. Author, among other books, of Moral damage in employment relationships (Studio editors).

 

Notes


[1] Cf. in https://noticias.r7.com/jr-24h/boletim-jr-24h/videos/quase-90-dos-pacientes-internados-por-covid-19-no-rio-nao-completaram-vacinacao-27012022.

[2] Cf. in https://noticias.uol.com.br/saude/ultimas-noticias/redacao/2022/01/31/internacoes-covid-19-sao-paulo.htm.

[3] For a new category of damage in civil liability: social damage. In: TRDC, vol. 19, July/September 2004.

[4] Cf. in: https://www.bbc.com/portuguese/internacional-59966065.

[5] Cf. in https://www.youtube.com/watch?v=DEZWPUKZEgk.

 

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