Childhood vaccinations — balancing rights and responsibilities

One of the most important principles underpinning medical treatment is the right to self-determination and to refuse medical treatment. But what if the patient isn’t over 18? What consequences can this have for those parents who choose not to vaccinate their children?

Firstly, all of the available, reputable evidence concludes that although no vaccine can be said to be 100 per cent safe, they play an important role in controlling preventable infections and there are very few adverse events associated with vaccines. 

The right to refuse medical treatment — including vaccinations — is enshrined in Article 7 of the International Covenant on Civil and Political Rights (ICCPR), as well as various domestic instruments like the Victorian Human Rights Act (at Article 10). Medical treatment must be provided with the free and full consent of the patient. So is a patient entitled to refuse medical treatment regardless of the circumstances? Technically, yes, provided that patient is over 18 and competent to make that decision. 

But what if the patient isn’t over 18? Legally, a child is not competent to make their own decisions about immunisation, so parents and guardians are entitled to make decisions on behalf of their children. However, the State is also able to intervene if the child is at risk.

In practice, doctors do not generally legally challenge parents who refuse to vaccinate their child. From a legal perspective, in a well-vaccinated population, the risk of contracting a preventable infection and suffering permanent long-term harm is quite low, so it is unlikely that the State or the courts would intervene in this way. In other words, the risk to the child is not significant enough to warrant intervention, at least at the moment. It's worth remembering, however, that the low risk is only low because of the high vaccination rate, and that these infections have not been eradicated completely.

Individual rights versus social responsibility

The key ethical argument for widespread vaccination is that vaccination is not just about the individual patient, that the community as a whole has an interest in that patient receiving treatment.

The community has a significant interest in preventing and eradicating infections, making vaccination programs unique in terms of medical treatment. According to the World Health Organization, vaccination programs have “drastically reduced the burden of infectious disease”, outperforming any other method bar access to clean water. So far, vaccines are responsible for eradicating smallpox and bringing infections like diphtheria, whooping cough and measles under control. When the Victorian Government scrapped the free whooping cough vaccine in 2012, known cases rose 58 per cent. It has now been reintroduced.

Given the evidence, and the potentially devastating effects of these infections, it could be argued that vaccination is actually a social responsibility, part of the social contract. There is also an argument that unvaccinated children are benefitting from the protection provided by the vaccinated majority (via ‘herd immunity’).

Government intervention

State governments have started to intervene in the potential conflict between the rights of the individual and the rights of the community. In 2014, the New South Wales Government passed ‘no jab, no play’ laws, preventing children from being enrolled in childcare unless they have been vaccinated. Similar laws came into effect in Victoria on 1 January 2016. These laws have been controversial, with some experts suggesting they are unnecessary given vaccination rates are stable and under-vaccination is not generally a problem in Australia. Further, parents can circumvent the laws by having a doctor explain the risk and benefits of vaccinations to them and then registering as ‘conscientious objectors’.

It’s a delicate balancing act. The right to self-determination is an essential part of medical treatment and should not be restricted lightly. While immunisation remains high, we’re not dealing with an immediately acute situation. However, what happens if vaccination rates fall and infection levels rise? The State is more likely to intervene to shift the focus from the rights of the individual and towards those of the community. While the government has a role to play in preventing the proliferation of potentially dangerous, unsubstantiated pseudo-science, it must also be careful not to marginalise the anti-vaccination movement as this could drive it to a more extreme position and, ironically, help it secure more support.

Ultimately, there will always be a tiny minority who will not change their mind, whatever the evidence, but the important thing is to minimise the influence that such minorities have on the neutral majority. Arguably, greater emphasis must be placed on education about the safety of childhood vaccinations and the important role they play in a healthy society. 

Tom Ballantyne is a senior associate in Maurice Blackburn's Melbourne office.

TOPIC: Patient safety
RELATED LEGAL SERVICES: Medical negligence

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Tom Ballantyne

Maurice Blackburn Melbourne
Tom Ballantyne is a Principal in Maurice Blackburn’s medical negligence department. He is a Law Institute of Victoria Personal Injury Accredited Specialist who sees clients in Melbourne, Dandenong and Frankston. Tom joined the firm as a trainee lawyer in 2006, and has practiced exclusively in medical negligence claims since 2007. He also spent two years working in the United Kingdom. “I was led to practice law at Maurice Blackburn because I always wanted to work in an area that would make a difference to people. It’s rewarding to help people navigate a distressing and sometimes life-changing experience. I’m inspired by helping people achieve a measure of justice and financial stability.” Tom’s skills include running complicated litigation across all areas of health care – obstetrics, delay in diagnosis, orthopaedics and emergency departments. He has achieved significant results for clients including settling cases involving catastrophic injuries and lifetime care needs, and is one of three Maurice Blackburn lawyers listed by the prestigious Doyles Guide as a leading lawyer in his field. “I provide legal advice and act for people injured by malpractice and poor medical treatment, such as birth injuries, delay in diagnosis of cancer and other diseases, orthopaedic and other types of surgery, wrongful birth, catastrophic injuries, and fatal accidents." Tom also represents families at Coronial Inquests, acting on behalf of the families of people who have died following poor medical treatment. Tom also has a passion for promoting medical law issues in the community. He is the author of The Legal Prescription blog, which covers topical legal and medical issues. He has also been published in the Law Institute Journal. Memberships & accreditations Law Institute of Victoria Member Law Institute of Victoria Personal Injury Accredited Specialist Australian Lawyers Alliance State Committee Medical Negligence Representative Awards Doyles Guide - Medical Negligence Compensation Lawyer, Vic - Leading lawyer, 2016 ...

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