24 Sep Teenage Vaccinations: Who Decides?
With the news that Covid vaccinations have begun for 12-15 year olds throughout the UK this week, this has proved to be a controversial topic which has divided opinion. Should children aged 12-15 receive the vaccination? Do children have any say in this? What happens if parents can’t agree on whether or not their child should be vaccinated?
Who can give consent?
Normally, before a child (person under 16) undergoes any medical treatment or procedure (including vaccinations), the medical practitioner carrying out the procedure will require the consent of the parents – as they will normally hold parental rights and responsibilities for the child.
In Scotland, a child can give their own consent to medical procedures once they have turned 16. However, it is possible for them to give consent before they turn 16, provided that the medical practitioner attending them considers that the child is capable of understanding the nature and possible consequences of the procedure or treatment.
We have recently heard a lot about the term “Gillick competent”. That term has derived from a House of Lords decision from 1986 known as Gillick, which clarified the law in this area and confirmed that children under the age of 16 can provide consent in that situation. In Scotland, this has been further cemented in the stature book by the Age of Legal Capacity (Scotland) Act 1991. So this is not a new development in the law.
In terms of the Covid vaccine therefore, even if parents can’t agree on whether their child should receive the vaccination, if the medical practitioner involved deems the child to be able to give consent – to either receive or refuse the vaccination – then it is not up to the parents to decide. The child’s views will prevail.
What about younger children?
If two parents cannot agree on whether a child should receive the vaccination then where each parent holds parental rights and responsibilities, one parent cannot “trump” the other. They need to try and reach an agreement. The parents would also be encouraged to seek the views of the child themselves, where appropriate. Mediation is one option for parents in this situation.
However, if agreement cannot be reached by the parents, then the default position is that the child will normally not be treated by the medical professional without an order from the court.
It would then be open to either parent to make an application to the court for something known as a Specific Issue Order; which would be an order from the court to either give or withhold consent to the vaccination on behalf of the child.
How does the court decide?
In any decision involving a child in Scotland, the primary consideration is the welfare of the child. Importantly, the court will only make an order if it is better for the child that an order is made than no order is made at all. The court would hear evidence (which can include expert medical and scientific evidence) and decide whether it is better for the child to receive a vaccination than not to.
In a recent English case (M –v- H), the judge ruled that it was in the children’s best interests to receive the vaccinations (including the MMR vaccine) which are currently recommended as part of the NHS vaccination schedule. Whilst the Judge refused to extend the order to include any future Covid-19 vaccination – on the basis that he considered that it was premature at that stage (January 2020), he did comment that:
“it is very difficult to foresee a situation in which a vaccination against Covid-19, approved for use in children would not be endorsed by the Court as being in a child’s best interests, absent peer-reviewed, researched evidence integrating significant concern for the efficacy and/safety of one or more of the Covid-19 vaccines or a well evidenced contraindication specific to that subject child”.
Whilst that was an English decision (and therefore is not binding on the Scottish Courts), it is likely to be taken into account in any future Scottish court action involving vaccinations of children and particularly the Covid 19 vaccination.
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