Should courts order vaccination against parents’ wishes?

8 February 2017 by Rosalind English

Vaccine in vial with syringe. Vaccination concept. 3d

SL (Permission to Vaccinate), Re 2017 EWHC (Fam) EWHC (30 January 2017) [2017] EWHC 125 (Fam)

The alleged risks attending on vaccination were outweighed by the benefits of immunisation by a clear margin, the Family Court has ruled.

Background facts

The seven month old baby SL was subject of an interim care order. The mother (the third respondent) objected to immunisations on the basis that her other children had suffered adverse reactions from them in the past. The local authority applied under the court’s inherent jurisdiction for a declaration that it was in the child’s interests for it to be given permission to arrange for him to receive the Haemophilus Influenza Type b (Hib) vaccine and the pneumococcal conjugate (PCV) vaccine.

The court had evidence from the designated doctor for children’s safeguarding for the local authority and a jointly instructed expert who stated that there was no medical reason why the child should not have the vaccinations according to the UK immunisation schedule and that withholding the vaccines would mean deliberately maintaining his vulnerability to two very serious infections. The mother had not produced any evidence to show the adverse reactions her children had suffered and the experts’ view was that such a reaction would not constitute a medical contraindication to vaccinating the child. The local authority submitted that it was in the child’s best interests to have the vaccines. The mother contended that her opinion should be respected.

The court made a declaration under its inherent jurisdiction that it was in the child’s best interests for the local authority to arrange for him to receive these vaccinations.

Reasons behind the Court’s decision

There were relatively few cases on immunisation ordered under the court’s inherent jurisdiction.  A parent is, ordinarily, accorded a significant degree of autonomy by the State in deciding in the exercise of their parental responsibility whether to vaccinate a child. However, in circumstances where there is a dispute between those holding parental responsibility (namely, the mother and the local authority)  the court is required to determine that dispute by reference to the child’s best interests. The expert evidence before the court was to the effect that

The Hib vaccination has, at the population level, been dramatically successful in reducing the incidence of Hib meningitis and other serious bacterial infection.

Furthermore the PCV vaccination given in combination protects children from pneumococcal disease, which brings with it a range of serious bacterial infections.  The court was not satisfied on the evidence that the mother’s other children had suffered reactions necessitating attendance at hospital following their vaccinations. 

In  C v A (A Minor) [2011] EWHC 4033 (Fam) the judge held that the children concerned should receive immunisations appropriate to their age against the wishes of the mother but in line with the recommendation of the expert medical evidence before the court. In another vaccination dispute, Re A, B, C and D (Welfare of Children: Immunisation) [2011] EWHC 4033 (Fam), Theis J considered the issue of vaccinations in the context of children who were the subject of final care orders. She concluded the children in that case should be vaccinated. Whilst in the instant case McDonald J recognised that the court had to accord appropriate weight to the parent’s views, he had to exercise an independent and objective judgment on the basis of all the evidence before him, including the expert evidence. It was in the child’s best interests to receive the outstanding vaccines.   In any event, the expert was clear that that would not constitute a medical contraindication to vaccinating the child. The determination of the dispute by the court was not an example of the overreaching by the state into an area of parental choice but was an example of the court discharging its obligation to ensure that the child’s welfare was safeguarded.

With regard to the mother’s rights under Article 8 of the ECHR, these had to be balanced against Article 24 of the United Nations Convention on the Rights of the Child which enshrines the right of the child to the enjoyment of the highest attainable standard of health and, within that context, imposes on States parties an obligation to pursue full implementation of that right, including the taking of appropriate measures to combat disease. The court in this case concluded that the interference with the mother’s right to respect for family life under Article 8 ECHR was justified and proportionate.

Declaration granted.

Comment

The judge in this case, as in the previous litigation concerning this issue, was at pains to stress that he was not basing his decision on the merits of vaccination but on the child’s best interests alone. But it forms a very strong precedent for the exercise of the court’s inherent jurisdiction in favour of immunisation which is as we all know not just a matter of individual best interests but public health. In Jonathan Heeney’s fascinating collection of essays “Plague” (Cambridge University Press 2017) the current Vice Chancellor of Cambridge University Leszek Borysiewicz FRS gives an account of the anti-vaccine movement, which predates the Andrew Wakefield controversy by at least a century.

Accepted in Prussia, accepted on the continent of Europe, to an extent accepted in the United States, in Britain this interference with the rights of the individual by the state and ‘authority’ was the final straw…

being opposed to vaccination was not seen in the late nineteenth century as being opposed to science. In fact some individuals argued that you were a more vigorous scientist if you explored whether vaccination was effective or not.

It might come as some surprise that the most prominent of these opponents was the evolutionary biologist and explorer Alfred Wallace. Indeed he thought his work opposing vaccination was more important than his theory of evolution. History and science have proved him wrong. But as the case above shows, people don’t like compulsion and the old system of enforcing vaccination on society under the threat of punitive fines has long gone into desuetude. On the other hand when opposition is fired by the popular press, herd immunity is threatened; as the author points out, whilst measles vaccines are very effective, safe and relatively inexpensive, the predictable consequences of the publicity surrounding the alleged link with autism  were “all too evident [in 2015] when in the Swansea region of South Wales, measles cases rose dramatically. The population had a low level of ‘herd immunity’ due to low immunisation rates and was susceptible to an outbreak when exposed to the virus.” (Plagues and Medicine, op.cit., pp 81-82).

The current non-coercive vaccination regime under the UK Immunisation Schedule is probably a good compromise, but a consistent approach by the courts such as illustrated by the growing case law favouring immunisation is to be welcomed.