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Giving consent for my child to have the COVID-19 vaccination

View profile for Phoebe Trott
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Giving consent for my child to have the COVID-19 vaccination

It has recently been announced by Professor Chris Whitty, the Chief Medical Officer for England, that all children aged 12-15 will be offered a single dose of the Pfizer vaccine. 

This has come about after concerns of the detrimental impact further disruption to their education could have on children. All 16-17 year olds are also being offered a first dose, with a view to receiving a second dose at some point in the future.

The Government suggestion is that the vaccine programme for children is likely to be given in schools (where national vaccination programmes usually take place) and parents will be asked for consent. 

However, what happens if a child wishes to have the vaccine but their parents refuse?

 

What does the law say about vaccines?

For children over the age of 16 there is a presumption that they have the capacity to consent to their own treatment and their decision can only be overruled in exceptional circumstances. This is because young adults (i.e. 16-17 year olds) are presumed to have sufficient capacity and understanding to decide these matters alone, unless there is sufficient evidence to the contrary.

For children under the age of 16, there is no such presumption. The legal test as to whether a child can consent to treatment stems from the famous 1986 case of Gillick v West Norfolk and Wisbech Area Health Authority. 

The case concerned a mother of five children whose teenage daughter had sought contraceptive advice from a local doctor, without her mother’s consent. Mrs Gillick’s view was that this was unlawful and interfered with her parental rights and responsibilities. The House of Lords held that in some circumstances a minor would be able to give consent to treatment in their own right, without the knowledge or approval of their parents, if they demonstrate “sufficient understanding and intelligence to fully understand what is proposed”.

The case gave us the concept of “Gillick Competence”, which allows a child under the age of 16 to consent to their own medical treatment if they are assessed as having sufficient intelligence, competence and understanding so that they can fully appreciate what is involved in their treatment.

Each case is dependent on the facts as each child is different. Factors such as the child’s age, understanding of the treatment and their ability to explain their reasoning (including the benefits and risks) will be considered. If a minor under the age of 16 is judged to be “Gillick Competent” they will be able to make the decision and consent to treatment for themselves.

If a child under the age of 16 is not deemed to be “Gillick Competent” then someone with parental responsibility for the child can consent on their behalf. This could be:

  • A child’s mother or father
  • A child’s legally appointed guardian
  • A person with a Child Arrangements Order stating that the child should live with them

What if those with Parental Responsibility disagree if the child should receive the vaccine?

Although those with parental responsibility can make some decisions unilaterally, there are a number of decisions which must not be made without the consent of all those with parental responsibility, which is usually both parents. This includes, but is not limited to:

  • Changing a child’s name
  • Decisions regarding their education
  • Religious decisions
  • Decisions concerning a child’s medical treatment.

If both parents cannot agree whether the child should have the COVID-19 vaccine, it may be necessary to make an application to the court.

The court’s paramount consideration is the welfare of the child and there are certain factors the court will have regard to, including:

  • the ascertainable wishes and feelings of the child concerned (in light of his age and understanding);
  •  their physical, emotional and educational needs;
  •  the likely effect on the child of any change in circumstances;
  •  their age, sex, background and any characteristics;
  •  any harm the child has suffered or is at risk of suffering;
  • how capable each parent, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs

The court will consider the above factors with a view to determining what is in the best interests of the child. The court undertook this exercise in the recent case of M v H [2020] which concerned an application for a Specific Issue Order concerning the MMR, travel and COVID vaccinations. 

In that case, the judge declined to consider travel or COVID vaccinations as there had been no guidance on the administration of the COVID vaccine for children at the time the judgment was given. 

The court did confirm that when parents cannot agree and the decision is in the hands of the court, it will be difficult to establish that a vaccination is not in the best interests of the child when it has been approved by scientific research and Public Health England unless there is significant evidence to the contrary, at which point a jointly appointed expert will be required to give evidence on the matter.

The Government has made its recommendation for 12-15 year olds after the Joint Committee on Vaccination and Immunisation (JCVI), which is the scientific body advising the Government on vaccines, said on balance there is not a compelling reason to vaccinate at this age group, unless the child has underlying health conditions. 

Where does this leave those parents who may feel as though it has interfered with their rights? What about those children who are not deemed to be “Gillick Competent” but are subject to peer pressure to consent to the vaccine? Although the case of M v H above refers to COVID vaccines, it does not give specific authority due to the lack of guidance in place at the time the judgment was given. As a result, it is thought we will see a rise in litigation in this area in the future.

If you require advice in relation to your child’s medical treatment or vaccinations, why not give one of our specialist family solicitors a call? 

We offer a free 15 minute telephone consultation and have the ability to offer appointments both virtually and face-to-face. I am based in our Colchester office and can be contacted on phoebe.trott@birkettlong.co.uk or 01206 217389.

 

 

 

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