There Ought to Be a Law: Vaccine Queue Jumping

As coronavirus vaccines have begun to be available, we have seen several incidents of people “jumping the queue” and obtaining vaccines for which they are not eligible. Eventually, this should not be a problem, but now, when vaccines are scarce, it has been important to prioritize who is to be vaccinated in the first and next groups. Although different in different provinces (since vaccine distribution is a provincial matter), these groups have generally included residents and staff in long-term care homes and health-care workers, particularly vulnerable people and those who care for them. Should there be a penalty when others elbow their way into the vaccine line.

The most notorious case of queue jumping is the wealthy couple, one the CEO of a casino company, the other an actress, who chartered a private plane to Beaver Creek, a remote First Nations community in Yukon, pretending to be local motel workers in order to get vaccinated, and then leaving immediately. They had arrived in Whitehorse, failing to quarantine there as required, chartered a plane and flew to Beaver Creek. They were charged with “violating the territorial Civil Emergency Measures Act (CEMA) by failing to self-isolate and failing to adhere to entry declarations”. The CEO subsequently resigned his position. (See CBC story here.)

Australian ABCnews quotes White River first nation chief Angela Demit as saying on Facebook, “‘We are deeply concerned by the actions of individuals who put our elders and vulnerable people at risk to jump the line for selfish purposes'”.

However, despite the condemnation the couple received both from the local community and elsewhere and the charges, they were not actually charged with anything specifically relevant to “jumping the queue” or “abusing access to vaccinations by vulnerable people”. Nor are they the only people who have decided that their interest is more important than that of the vulnerable people whose circumstances government had determined should be of a higher priority and objectively appear to be of a higher priority, regardless of government determination.

Ontario’s initial priority groups are residents and front-line staff associated with long-term care homes, front-line health-care workers and adult members of Indigenous communities, as well as residents of retirement homes and “recipients of chronic home health-care” (see CBC story here and CTVnews report here). Ottawa Public Health has provided a detailed list of current priority groups. However, administrators in, for example, long-term care homes or hospitals have in some cases ignored the priority lists to give to others with whom they have a particular connection.

The National Post reported on February 11th that “[t]he manager of an Ottawa retirement home has been suspended after allegations his wife bumped a housekeeper at the home out of the vaccine queue last weekend” and that “[i]n Woodbridge, a union grievance has been filed after a nurse was allegedly told to give vaccines to ineligible people and to classify them as caregivers. The chair of the home’s board of directors confirmed the vaccines went to some who don’t work or live at the home, including himself.” Some of those others may have been friends, according to the CBC. The Brantford Expositor reported that the owner of a retirement home, his wife and family members of the home’s manager were vaccinated.

Hospitals have also invited administrative staff who do not interact with patients or medical professionals who interact on line to their vaccine rollouts (this has been justified by one hospital chief of staff as allowed by provincial guidelines) (see CTVnews story here).

Authorities are considering steps to protect against queue jumpers, such as British Columbia’s decision to require proof of age and residence as the vaccine is rolled out more generally (see CTVnews here). The NDP, for one, has called for clearer rules for what to do with “leftover” doses of vaccines (some of those who have taken vaccines when they were not “on the list” have explained it as using up vaccines that were not used, claiming they would otherwise go to waste) (see CTVnews here).

I do not know how many people have taken vaccines out of step with the priority order. Put another way, I do not know how many people have taken vaccines intended for those considered particularly vulnerable, whether using the excuse that they would otherwise go to waste or not. Ret. Gen. Rick Hillier, who leads Ontario’s COVID-19 vaccination task force, has said hospitals gave vaccinations to persons “who were probably further down the queue” in order not to waste opened doses; the Ontario Ministry of Health says these incidents of queue-jumping are “rare” (see CTVnews story here).

Vaccinations are intended to protect those who receive them, as well as those who come in contact with vaccinated individuals, although the efficacy is neither immediate nor perfect and therefore health officials recommend continuing mask wearing, distancing and so on. For some people, receiving a vaccination may be the difference between life and death (for example, the dreadful toll at the Roberta Place long-term care home in Barrie occurred just as vaccinations became available after being delayed because infections occurred prior to delivery [see Globe and Mail report here], for others it may offer a chance to lead a more “normal” life, not an insignificant objective, but not (I’d argue) equivalent. Many people believe they should be treated as priorities for the vaccine and some of them, at least, may be right. Nevertheless, jumping the queue, especially when the lucky recipients are not particularly vulnerable (and there has been no suggestion that any of those out of step with the intended recipients are vulnerable) is a breach of the social compact.

Law is one way we recognize the ingredients of the social compact. Municipalities did not hesitate to impose large fines for people who failed to observe social distance or other rules in parks in the early days of the pandemic because these rules were intended to protect everyone. Other rules or guidelines protected particular members of the public. Most of these rules were contested by at least some people subject to them. However, the underlying premise — that we owe an obligation to others at greater threat than ourselves — is valid and is reflected in the distribution of what is, unfortunately, still a scarce resource, the Covid-19 vaccinations.

Perhaps the public shaming and other internal penalties (loss of position or suspension) are sufficient. After all, eventually it won’t be an issue, one assumes, when we have mass vaccination programs. And even now, it may be accurate that few people actually engage in this type of selfish conduct.

Yet jumping the queue requires a societal response and society often responds through the law when it wants to compel — or in a sense “model” — appropriate behaviour, even if the inappropriate behaviour is “rare” (although we hear about it a lot, murder is not that common, but we still have laws about it). So three options for a legal approach: 1) it would be a good idea if, as others have said, the government gave clear instructions about how to distribute vaccines, including but not limited to priority distribution, that will apply even as more and more people have access (and given Covid-19 variants and potential pandemics, we may have to address priorities in the future) and non-compliance with distribution rules could be addressed; 2) as we cycle through the lockdowns, the government could enact a regulation or order under the Emergency Management and Civil Protection Act, with the order continuing under the Reopening Ontario (A Flexible Response to COVID-19) Act, 2020; or 3) the government could simply enact a regulation under the Reopening Ontario Act. Whether through these or other means, the nature of vaccine queue jumping raises the question of whether “ought there to be a law” to reflect the seriousness of this breach of social commitment and responsibility.

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