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Thanks to Butterworths.co.uk
MMR vaccination ruling
The High Court recently ruled that two children are be given the MMR
vaccination after the parents failed to reach an agreement. In both cases the
the objectors were mothers who had the parental responsibility and were
estranged from their husbands. Does this mean that absent fathers have greater
parental input than the responsible parent? Jill Goldman, partner and head of
the family department at Thomas Eggar talks to Mary Luckham...
Despite
their mothers� objections, Mr Justice Sumner in the High Court, recently
ordered that two girls aged four and ten be given the combined measles, mumps
and rubella (MMR) vaccination. On the same day GPs, whilst endorsing the
vaccine�s safety called for the Chief Medical Officer to resign over target
payments to doctors in respect of MMR. The BMA local medical committees
conference in London unanimously agreed on the motion that linking payment to
doctors reaching targets for immunisation contributed to parents� lack of
confidence in the vaccine and the decrease in the number of children who are
given the vaccine.
There are currently concerns about the possibility of a link between MMR and
autism and a class action by parents - who claim that their children suffered a
variety of adverse consequences, including autism � is being brought against
GlaxoSmithKline, the makers of the vaccine and will be heard in the High Court
next year.
It has been suggested that Justice Sumner�s ruling should have been postponed
pending a decision in the class action against the drug company.
However, Jill Goldman, partner and head of the family department at Thomas Eggar
pointed out that: "This case was brought under the Children Act 1989 and
under this Act there is a principle of �no delay�. Matters must be dealt
with quickly so that there is a minimal period of uncertainty for the children
and parents."
She thought it might have been different had the class action been scheduled to
take place within the next week or so but given the time frame, to have
postponed a ruling on MMR would have contravened the Act as constituting a
delay.
It has been mooted that, given the government�s enthusiasm for MMR, this
ruling threatens the rights of parents to exercise their judgment on vaccinating
their children and brings us closer to having a system of compulsory
vaccination. Ms Goldman did not agree.
She said: "Each case is decided on its merits and in this case the judge
would have had to consider what was in the best interests of each child. If a
similar case were brought by another parent then the judge would have to look at
that particular case and consider what was in the best interests of that
particular child."
In fact, Justice Sumner has pointed out that his decision was not to be seen as
a general legal approval for immunisation and therefore it did not mean that at
another hearing a different decision might not be reached. In addition he
emphasised that where parents were in agreement that their child should not be
vaccinated the law would respect their views.
This action was brought because the parents could not reach agreement. Both
mothers, with whom the children live, are estranged from the fathers who brought
this action and one of them has suggested that the reason the father of the
child brought the action was to control her, the mother, by using the legal
system.
Ms Goldman explained that, generally, absent fathers do not have the legal right
to exercise such control. She said: "It is only when the father has
parental responsibility, which can be given to him either by the mother or by
the court, that he has a right to share in decisions about, amongst other
things, their child�s health, education and religious upbringing. If he does
not have parental responsibility then those sorts of decisions rest entirely
with the mother."
Subject to very limited exceptions, a patient�s consent must be obtained
before medical treatment can be administered and parents are entitled to consent
or refuse treatment on behalf of their children. The issue as to whether consent
to or refusal of medical treatment by minors under the age of 16 is valid
depends on the competence of the minor and the treatment involved.
Although one of the children in this case was far too young, at age 4, to have
her wishes taken into account, the other child, aged 10, was opposed to the
vaccination. Ms Goldman�s view was that, at 10, a child was: "A little on
the young side to be thought to be competent to decide whether or not to have
the injection but was old enough to have her views taken into account."
She did not consider that the appointment of a guardian ad litem � as has been
suggested � would necessarily have resulted in a different outcome in respect
of that particular child. She said: "It is up to the court as to whether or
not a guardian is appointed. A guardian does not have medical expertise so he or
she would have sought the views of the medical experts in this case. The
appointment of a guardian ad litem may not have made any difference but perhaps
the childrens� views would have been heard more clearly by the judge."
Notwithstanding the decision of the court, Ms Goldman agreed that, when it came
to actually administering an injection to a child of that age who was adamant in
its refusal, it was unlikely that a doctor or nurse would try to physically
force the child to comply with its parents� wishes. Her view was that,
provided a doctor or nurse had the consent of the parents or the court the
actual giving of the injection would be lawful. But, she said: "If they
held the child down in order to do it there would be a risk of allegations of
assault." (30/06/03)
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Legislative annotations in other services:-
Children Act 1989.
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