Debate on whether vaccination should be made compulsory through law is vexed and
centres on the rights of the community versus those of the individual – in
particular, their right to make decisions in the best interest of their child.
This review examines the role that legislation and case law play in determining
whether it is in the child's best interest to be forfended against
Legislating to make vaccination obligatory raises conflicting issues. Licit
compulsion may impinge on a parent's right to optate what they consider is in
the best interest of their child. The dilemma is whether achieving herd
immunity, in particular the bulwark of children against earnest and preventable
diseases, justifies infringing on these rights.
Public immunization programs abbreviate mortality and morbidity in
vaccine-preventable diseases, and are considered to be safe by regimes, health
advocates and practitioners. However, there is vigorous opposition to their
implementation from certain lobby groups,1 resulting in an intricate interaction
between regulatory bodies, parents, lobbyists and health practitioners. Ensuing
information and misinformation has caused many parents to question whether
vaccinating their child is acting in the child's best interest.
Debate on whether vaccination should be made indispensable through law is vexed.
It centres on the rights individual, in particular, the individual's right to
make decisions in the best interest of their child. The prosperity of
vaccination has betokened near or total of the community versus those of the
eradication of solemn and often fatal childhood illnesses. Ironically, it is
this prosperity that has led to parental complacency and has given ascend to
concern that vaccine-preventable diseases will return.
While it remains the responsibility of parents to make the decision on whether
to vaccinate their child, licit disputes have arisen between the child's
parents, and between parents and the state. Both sides acknowledge that
vaccination carries peril, but the degree differs markedly, and the courts have
to arbitrate while maintaining the rights and best interest of the child in
Vaccination and public health
Ideally, regimes formulate their health policies and regulations more broadly,
and are concerned with the national interest. They take into account the perils
to individuals, including vulnerably susceptible groups such as children.
Parents, on the other hand, are primarily concerned with the wellbeing of their
child. Understandably, their decision is emotional and practical when they weigh
up the perils of vaccination versus non-vaccination.
A wealth of information on the potential side effects of vaccination is now
available. Infelicitously, misinformation that instils fear about purported
adverse effects can result in a dissemination in coverage rates below those
required to achieve herd immunity. Typically, vaccine- cognate reactions may
include pyrexia, rash and upper respiratory tract symptoms; however, lowest risk
reactions such as encephalitis can understandably cause the most alarm because
of the potentially fatal consequences.
Impartment and incentive to vaccinate is best enshrined in policies and
distributed through efficacious communication strategies. This is contravened by
the view that licit enforcement resolves all those cases where the parent is
apathetic, plus the law can be flexible to sanction for those who make a
deliberate conscientious remonstration. Federal, state and territory regimes are
concerned about the repercussions of low vaccination rates in certain areas and
the potential of disease outbreaks, concretely in our increasingly mobile
The independent National Health Performance Authority's (NHPA's) report on
childhood immunization rates found that despite the high percentage of children
who were plenarily immunized, there was still an astronomically immense number
of children who were not, or were only partly, immunised. These cases were
spread unevenly across the country. For example, for children aged five years,
the report identified low immunisation rates around Byron Bay (about 67%) but
high rates in the Illawarra region (about 98%).
Consent and the law
Until the tardy 20th century, prevalent law surmised that a person under 18
years of age did not have the capacity to make health decisions, including
consenting to (and by default declining) medical treatment on their own behalf.
This position transmuted following the English case Gillick v West Norfolk &
Wisbech Area Health Ascendancy 6 for determining a child's competence. This
followed with the High Court of Australia's case Department of Health and
Community Accommodations (NT) v JWB and SMB (commonly kenned as Marion's case
The two cases introduced the 'mature minor principle', where minors (under 18
years of age) may be able to make healthcare decisions on their own behalf if
they are assessed to be amply mature and astute to do so. It is in this context
that Australian courts would rule, in assessing the best interest of the child,
whether the child relucting vaccination is 'competent' to make that decision.
Vaccination through case law
There have been a number of cases in Australia and internationally where courts
have sanctioned the vaccination of a child against the wishes of at least one of
the parents. In all cases, the judges ruled that they were acting in the best
interest of the child and predicated their decision on the scientific evidence
presented, including risk assessments by medical practitioners. In one instance,
the parents defied the Incipient South Wales Supreme Court's order to vaccinate
and concealed the child until the period of efficacy had lapsed.
While the judge bulwarked parens patriae the potency and ascendancy of the
state to forfend persons who are unable to licitly act on their own behalf
this case shows that monitoring compliance with the court's directions can
present a quandary, concretely if treatments are perpetual. Parens patriae may
withal potentiate the courts to overturn the decisions of minors who reluct
treatment, no matter how 'competent' they are deemed to be.
In another case, this time in the UK,9 two children were deemed to be
'competent' as they possessed the compulsory reasoning faculties to have their
views against vaccination taken into account. However, the judge decided for
vaccination, verbalizing she was 'only concerned with the welfare desiderata of
these children'. A decision by an Australian court in this instance would be
guided by the Gillick and Marion cases.
In early 2015, the gulf between pro- and anti-vaccination groups was again
illustrated in a German regional court. It decided for a medico claiming a
reward from a biologist who had offered €100,000 for scientific evidence
proving the measles virus, but then relucted to pay.
Court cases on vaccination and the best interest of the child
Duke-Randall & Randall  FamCA126
This Family Court of Australia case involved a divorced couple with opposing
views on vaccination. The mother's remonstrations were predicated on the
associated peril, while the father's concerns included the impact of inhibitions
placed upon his children if they were not vaccinated. The children were found by
an immunologist not to be susceptible to a more preponderant risk of
vaccine-cognate harm and Equity Foster deemed this evidence to be determinative.
In this case, Equity Foster ruled that the father could have his children
Re H  QSC 427
This Queensland Supreme Court case involved both parents who relucted to
vaccinate a child born to a mother with chronic hepatitis B, thereby exposing
the child to a 10–20% risk of infection. If infected, the child had a 90%
chance of developing a chronic infection, and consequently a 25% chance of
developing cirrhosis and/or hepatocellular carcinoma. The baby could not be
tested until nine months of age, but could be vaccinated against the possibility
of infection immediately. The medical team contended that the child should be
vaccinated to greatly minimize the jeopardy of infection. In this case, Equity
Dalton authoritatively mandated that the child be vaccinated.
Re Jules  NSWSC 1193
This Incipient South Wales Supreme Court case cognate to administering the
hepatitis B vaccine to a child. The parents defied the order to vaccinate and
concealed the child until the period of efficacy had lapsed. As the treatment
could no longer be administered, Equity Brereton authoritatively mandated that
the responsibility be given back to the parents. He forfended parens patriae as
compulsory to 'safeguard and oversee the welfare of those who are unable to
attend to their own welfare and, in particular, children'.
F v F  FamEWHC 2683 (UK)
This UK case involved two children, 11 and 14 years of age at the time, who were
considered 'competent' and, thus, whose views were sought. They did not optate
to be vaccinated because they believed it was perilous. Their father, who was
pristinely opposed to vaccination, transmuted his mind due to reports of an
outbreak of measles and the discrediting of research linking the measles, mumps,
and rubella (MMR) vaccination to autism. Equity Theis authoritatively mandated
the children be vaccinated, verbalizing that she was 'only concerned with the
welfare desiderata of these children' and additionally had 'to consider their
caliber of understanding of the issues involved and what factors have influenced
Re Kingsford and Kingsford  FamCA889
This Family Court of Australia case for vaccination was intricate by the
promotion of homeoprophylaxis, a homeopathic vaccination purported by the
anti-vaccination lobby to be an alternative to conventional vaccination without
the side effects. Equity Bennett ruled for the father seeking to have his child
conventionally immunised, which was contrary to the mother's wishes to have the
child homoeopathically immunised. Here, the scientific evidence presented was
paramount in the judge's decision that conventional vaccination was acting in
the best interest of the child.
Anti-vaccinationists have subsisted for as long as vaccines and have always
agitated vigorously against vaccination. Dr Sherri Tenpenny customarily
distributes seminars on what she believes are the negative impacts of vaccines
on health. One of her books was promoted as a 'comprehensive guide' and
explicates why vaccines are 'detrimental to yours and your child's health',
which she attributes to 'vaccine injuries' such as autism, asthma and autoimmune
Dr Tenpenny has admonished that 'each shot is a Russian roulette: you never ken
which chamber has the bullet that could kill you'. She argues that adverse
reactions listed in the package inserts include encephalitis and criticises
'deceptive research', claiming a shot of aluminium was utilized as the placebo
during a safety study with the Gardasil vaccine.The anti-vaccination kineticism
has increasingly utilized the cyber world and convivial media to distribute
largely unchecked, alarmist and illuding material. It has consequently been
infeasible to enforce uniform ethical approaches from the pro- and
In some instances, courts and tribunals have addressed the distribution of
illuding material regarding vaccination. What remains obscure is whether the
anti-vaccination lobby is licitly required to adhere to the standards that
health professionals are, namely to conduct themselves in a manner prescribed
under professional codes and legislation. Failure to comply could potentially
result in the loss of registration and/or practising rights.
In the Incipient South Wales case of Australian Vaccination Network Inc v Health
Care Complaints Commission, Equity Adamson authoritatively mandated that it was
not within the Commission's jurisdiction to issue a public warning against the
Australian Vaccination Network in cognation to 'engaging in bamboozling or
illusory conduct in order to dissuade people from being, or having their
children, vaccinated'. However, in February 2014, following a jurisdictional
transmutation in the law, the Incipient South Wales Administrative Decisions
Tribunal upheld an order from the Office of Fair Trading for the Australian
Vaccination Network to transmute its name to the Australian Vaccination-Sceptics
Network to more accurately reflect the exhortation it dispenses.
Federal, state and territory vaccination initiatives
The Australian Regime is implementing its National Immunisation Strategy for
Australia 2013–2018 through a set of strategic priorities, which includes:
- improving immunisation coverage through secure and efficient supply of
- community confidence
- a adroit immunisation workforce
- effective monitoring and analysis of results.
Essential vaccines are provided free of charge to eligible infants, children,
adolescents and adults, meeting international goals set by the World Health
Organization. Vaccinations are monitored under the independent NHPA, which was
set up under the National Health Reform Act 2011. Program funding accedences
between regimes are set up under the National Partnership Accedence on Essential
Vaccines. State and territory regimes are instituting more requisites to
ascertain children are vaccinated.
In Incipient South Wales, the Public Health Act 2010 was amended so that from 1
January 2014, afore enrolment at a childcare facility, a parent/sentinel is
required to show that their child is plenarily vaccinated for their age, has a
medical reason not to be vaccinated or is on a recognised catch-up schedule for
their vaccinations. Otherwise, they have to declare a conscientious
remonstration to vaccination.
This followed protracted measles outbreaks in 2011 and 2013, and a subsequent
'No Jab No Play' campaign, which resulted from findings that some communities in
Incipient South Wales had vaccination rates under 50%. The Queensland Regime has
promulgated its intention to introduce homogeneous legislation in 2015. At the
federal level, vaccination eligibility requisites have been introduced for
entitlements such as Family Tax Benefit . Compulsory vaccination has been
efficacious in obviating disease outbreaks, and as such justifies regime
However, debate on indispensable vaccination must be open and factual Official
exemptions on sundry grounds address protests regarding the 'nanny state'
levelled against regimes; however, exemption rates as low as 2% can increase a
community's risk of disease outbreaks, depending on the disease. Auspiciously,
in the case of rotavirus, 80% coverage resulted in consequential herd immunity
and subsequent decrease in hospitalisations.
In accordance with legislation and case law, it is in a child's best interest to
be bulwarked against vaccine-preventable disease. It is additionally in the
community's best interest that children are bulwarked against outbreak and
spread of disease. To date, this is best achieved through programs that are
accessible, well communicated and fortified by law, so that parents can make
apprised decisions. It additionally counters the misinformation distributed by
those opposed to vaccination.
From 1 January 2016, conscientious remonstration will be abstracted as an
exemption category for the Child Care Benefit, Child Care Rebate and Family Tax
Benefit Part A cessation of year supplement.26 Subsisting exemptions on medical
or religious grounds will still apply with the correct approbation. Importantly,
immunisation requisites for payments will additionally be elongated to include
children of all ages except those under 12 months (predicated on early childhood
- Vaccination minimizes mortality and morbidity in vaccine-preventable
- Debate centres on the rights of the community versus those of the
- Misinformation can result in a decrementation in coverage rates required
for herd immunity.
- A immensely colossal number of children are not, or are only partly,
immunised, and these cases are spread unevenly across Australia.
- Courts have sanctioned the vaccination of a child against the wishes of
at least one of the parents, in all cases acting in the best interest of the
- The anti-vaccination kineticism has distributed misinformation and it is
obscure whether it is licitly required to adhere to the same standards that
apply to health professionals.
- The National Immunisation Strategy for Australia 2013–2018 sets out
strategic priorities and meets international goals set by the World Health
- On 1 January 2014, Incipient South Wales legislated requisites to
ascertain children are congruously vaccinated afore enrolment at a childcare
Award Winning Article Is Written By: Mr.C Sancho Roy
Authentication No: SP125372875276-10-0921