Voluntary Vaccination Regime and State Intervention in Ireland
The article discusses the voluntary/consensual vaccination regime in Ireland, focusing on parental consent and the threshold for state intervention. It explores disputes between parents, litigation on vaccination programs, and considerations for potential changes to the vaccination regime. Comparisons with other jurisdictions and the constitutional background supporting parental decision-making are also highlighted. The case of North Western Health Board v. HW illustrates the court's stance on parental decision-making regarding their child's welfare. Overall, the article provides insights into Ireland's approach to vaccinations and the role of parental consent.
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VACCINATIONS AND CHILDREN N ra N Loinsigh BL
Voluntary/ consensual regime of vaccination in Ireland Parental consent and the threshold for State intervention INTRODUCTION Disputes between parents Litigation on vaccination programs Considerations for changes to the vaccination regime
IRELAND AND COMPARATORS Voluntary/ parental consent regime in Ireland. No mandatory vaccinations in education or other settings for children. Pre-schools can refuse entry without vaccinations, they are obliged to maintain a register of immunization records (Child Care Act 1991: Early Years Services Regulations 2016) No proposed mandatory regime at present (proposals in 2019 for preschools) Other jurisdictions: 11 European Countries have some form of mandatory vaccination (as of 2020). Challenge to Czech system before the ECtHR in Vav i ka v. the Czech Republic (application no. 47621/13) heard in July 2020. Many US States have mandatory vaccination requiring evidence for public school. Australia has mandatory vaccination requirements for access to primary and, as of 2018, secondary education.
CONSTITUTIONAL BACKGROUND Key rights: Family rights (Article 41), Children s Rights (Article 42A), Personal rights e.g. bodily integrity (Article 40.3). Voluntary regime which relies on parental consent in relation to vaccination is supported by the constitutional background which emphasizes parental decision making. Key case law: NHB v HW [2001] 3 IR 622, In the matter of JJ (Supreme Court, 22 January 2021).
The Health Board sought orders declaratory and mandatory to facilitate the administration of the PKU hell prick test on an infant whose parents refused consent for the test. These were refused by the High and Supreme Courts. Hardiman J summarised the issue [at 746]: whether a court may enforce on parents who are careful and conscientious, a view of their child s welfare which is rational but quite contrary to the parents sincerely held but irrational beliefs. This question of welfare arises in the context of an invasive diagnostic test and not of an immediate and life threatening emergency. The Court concluded that it could not, the threshold for intervention required involved an exceptional case where parents had failed in their duty to the child. Parents were entitled to make ill-advised , irrational decisions but that did not rise to the threshold requiring Court intervention. NORTH WESTERN HEALTH BOARD V HW [2001] 3 IR 622
Application to the question of vaccination? Of note vaccinations is the comment by McCracken J in the HC (at 634) which is referred to again by Hardiman J: There is in fact a far stronger case to be made that some vaccinations should be compulsory in the common good where the vaccination is against an infectious disease such as diphtheria or meningitis, but the State has chosen to leave it to the decision of the parents whether or not to have these vaccinations. NORTH WESTERN HEALTH BOARD V HW [2001] 3 IR 622 CONTD. High threshold must be met for the State to intervene in parental decision making.
Very recent decision of the Supreme Court regarding the interaction between parental decision making and state intervention in decisions regarding withholding treatment for a child. IN THE MATTER OF JJ (SUPREME COURT, 22 JANUARY 2021) Court considering the withholding of medical intervention in the case of a young boy who had suffered catastrophic injuries in an accident. The Supreme Court upheld the orders made by Irvine P (with some variations on the more general orders made) and affirmed the high threshold for intervention. The case is concerned with medical treatment so its applicability to a regime of vaccination/ testing is likely to be somewhat limited.
DISPUTE BETWEEN PARENTS C.O'S. and T.B. v Her Honour Judge Alice Doyle, D.B. v AG [2014] 1 IR 556. MacMenamin J issued judgment on behalf of the Supreme Court in case concerning booster vaccinations for a child in circumstances where the parents did not agree. Case began with an application (s 11 Guardianship of Infants Act 1964) by TB s father for the child to be allowed to have booster injections in school, which the mother did not consent to. Supreme Court held that there was no constitutional veto for the mother of the child nor did legislation provide for one parent s views to be considered above another. It upheld the decision of the High Court refusing judicial review. The welfare of the child was they key issue for the Court (prior to Article 42A). The Court distinguished the NWHB case, noting no state intervention arising here.
LITIGATION ON THE EFFECTS OF VACCINATIONS Recent cases involving the Swine Flu Vaccination Benjamin Blackwell (2020) Aoife Bennett (2019) both settled without admission of liability. Best v Wellcome Foundations, & Ors. [1992] ILRM 609 Case concerned child who developed seizures and suffered injury shortly after receiving the 3-in-one vaccine which appeared to have been from a particularly potent and toxic batch of the vaccination. The HC had refused reliefs on the basis of causation not being demonstrated but the SC held that there was such a link and directed re-trial on the question of damages. O Leary v HSE, AG and Healy [2016] IECA 25 Unsuccessful appeal to the Court of Appeal of dismissal of the Plaintiff s case that brain injury had been caused by the Measles Vaccination by the High Court for failure to establish a prima facie case linking the injury and the vaccination.
Whether any form of mandatory vaccination will be introduced in relation to children. Whether if service providers bring in mandatory requirements for vaccinations, this will result in claims. KEY QUESTIONS Requirements for travel? Requirements to attend creche or other activities? Requirements for retail/ hospitality?
