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Medico-Legal Case Study: Vaccination

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 vaccine-preventable diseases.

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 every instance.

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 population.

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 [2014] 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 vaccinated.

Re H [2011] 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 [2008] 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 [2013] 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 their views'.

Re Kingsford and Kingsford [2012] 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-vaccination lobby
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 disorders.

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 anti-vaccination advocates.

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 vaccines
  • 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 intervention.

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 immunisation status).

Key points:
  • Vaccination minimizes mortality and morbidity in vaccine-preventable diseases
  • Debate centres on the rights of the community versus those of the individual.
  • 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 child.
  • 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 Organization.
  • On 1 January 2014, Incipient South Wales legislated requisites to ascertain children are congruously vaccinated afore enrolment at a childcare facility.

    Award Winning Article Is Written By: Mr.C Sancho Roy
    Awarded certificate of Excellence
    Authentication No: SP125372875276-10-0921

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