Public Vaccination for H1N1 – What if the government is wrong?

Public Vaccination for H1N1 – What if the government is wrong??? It’s hard to nail down objectively, but anecdotal evidence suggests some healthcare workers are beginning to worry about the changing nature of information accompanying the H1N1 threat.

If a problem surfaces, can the federal government be legally liable for its pandemic threat vaccination strategy, or even for how it is implemented?

Have you ever heard the aphorism, “The King can do no wrong”?

Sounds a little archaic, but it reflects a legal concept.  Governments (within the Commonwealth) are generally shielded from the consequence of their actions or decisions – whether intentional or negligent  – that result in loss to another party.

As a broad principle, the courts have generally subscribed to the concept of democratic governments being entitled to govern free from claims for liability for wrongful acts.

In recent decades, this has been interpreted as follows:

• governments must make choices as they seek to govern societies; therefore policy decisions and the resulting consequences are generally immune from civil liability.
• however, the execution of the policy can render governments liable.

Example: a government policy, based on finances and resources, determines that bridges are to be inspected annually.  Whether that is sufficient or not is generally not a question the courts will entertain – that’s policy.  However, in the annual inspection, cracks in the support structure are overlooked, and the bridge collapses.  That’s poor execution – and the responsible government would likely be liable for resulting damages.

But in our day, we are seeing a move towards increased legal responsibility for governments, sometimes due to a blurring of the distinction between policy and the execution of policy.

So if it turns out that the current strategy to vaccinate Canadians is underpinned with faulty, or partial information, how much of that decision is policy and how much is execution?  How much will it even matter?

I choose to think the government is in good faith, doing what is believed to be best for Canadians.  I just hope they are right – because if not, somebody will be itching to test that principle about the “King’s” ability to get it wrong.