George J. Annas is a professor of health law, bioethics and human rights at Boston University School of Public Health, and author of "The Rights of Patients."
The New York State Health Commissioner's new mandate that all health care workers be vaccinated against both the seasonal and the swine flu this fall could qualify as the major public health blunder of the year, because it is likely to backfire.
Flu has been rightly characterized as a "slippery disease" that can mutate quickly and unpredictably, which means that planning for flu epidemics must be flexible and should be reviewed regularly as evidence of disease spread and severity accumulates.
We are already experiencing the beginning of a second wave of swine flu, the 2009 H1N1 influenza. Effective response will require cooperation of the public, and such cooperation (in actions such as getting vaccinated, social distancing and staying home when sick) will happen only if the public trusts its health officials.
Surveys have noted an erosion in public trust of government officials, but continued confidence in physicians and nurses. In this context, persuasion based on science, ethics and prudence, not on legal threats, should be the mandatory course of action for public health officials.
Physicians and nurses, educated and licensed professionals, dedicated to their patients' health and welfare, do have an ethical obligation to take all reasonable steps to protect their patients. During a threatened flu pandemic, like swine flu, this includes, I think, getting a swine flu vaccination.
So why not require vaccination if they refuse? There are at least four reasons.
The first is symbolic: The practice of medicine (and nursing) is a voluntary one based on informed choice - and will hopefully remain this way. Forcing physicians and nurses to become unconsenting patients - even for a flu shot - undermines the consensual nature of the health care relationship, and at least suggests that if health care professionals can be forced to take a vaccination for the good of others, perhaps everyone else can, too.
The second reason is pragmatic. We are likely to get more physicians and nurses vaccinated in a well-planned and executed voluntary program (including providing the vaccinations at staff meetings, for example), than in a forced program that will draw and energize opposition.
Third, if enough physicians and nurses refuse vaccination, the mandate will be unenforceable, since no responsible public health official would try to close a hospital for failure to comply with the mandate in the midst of a flu epidemic.
Fourth, the requirement that physicians and nurses be vaccinated as a condition of practicing medicine and nursing in health care settings will predictably confuse the public when clarity is critical.
The public will reasonably ask, if physicians and nurses won't voluntarily take the swine flu vaccine, why should I? Do they know something I don't? Why do all other government officials, including President Barack Obama, the secretary of Health and Human Services and the head of the Centers for Disease Control, all recommend that swine flu vaccination be voluntary - at least outside the U.S. military, where troops live in close quarters and a flu epidemic among the troops would substantially limit their ability to perform?
Does anyone in authority really know what's going on? And if this new mandate is a response to the threatened swine flu epidemic, why does it apply to the seasonal flu as well - is there some new flu information that New York officials have that no one else has?
State Health Commissioner Dr. Richard Daines is right to note that seasonal flu vaccination rates among health care workers in New York have been too low in the past and need to improve. He is right to note the dedication of New York's health care workers in the context of great uncertainty and possible risk, including the early days of the HIV/AIDS epidemic and SARS.
But he is wrong to transform a reasonable professional ethics obligation into what looks like an arbitrary and unnecessary legal obligation. He is treating seasonal flu and swine flu vaccination the same - requiring them both - even though he thinks that H1N1 is the much more important vaccination to get.
Public health officials should work with medical and nursing organizations to persuade them to recommend that their members be vaccinated, and state licensing boards should, if they find it appropriate, make the same recommendation, if they also find it appropriate.
Medicine, nursing and public health are much stronger, and send a much more effective message to the public, when they work together than when they work at cross purposes.
And to the extent that the commissioner wants to protect health care workers themselves, the focus should not be entirely on vaccinations, but should include the health care institution environment, including hospital infection control procedures, adequate supplies of respiratory masks, and reasonable sick leave and worker compensation policies.
The ultimate measure of success or failure of a swine flu vaccination program will be in lives saved and lives lost. The most effective way to maximize the numbers of the public being vaccinated is to send the message that physicians and nurses believe this is the most reasonable approach to take to prevent wide-scale death and disease from the swine flu.
Legal threats and mandates undercut that public health message and will backfire.