Damien Carrick: Hello, welcome to the Law Report. Today, vaccinating children. Do parents always have the final word on whether or not to vaccinate? Well, usually yes, but if parents disagree, the courts do step in. One such case was recently decided by the Family Court, sitting in Parramatta.

Professor Cameron Stewart is based at the University of Sydney Law School. He says the ‘Randall’ case—not the family’s real name—involves a divorced couple with opposing views about vaccination.

Cameron Stewart: It’s been a long-running matter, involving two parents, where one of the parents—the mother—had a particular objection to vaccination and a fear that her children, who were by the stage of this final decision were in their teenage years, a fear that they would be susceptible to vaccine-related injury if they were subjected to vaccination.

When the relationship broke down, the father decided that he would assert his views, that there was… appropriate and important for the children to be vaccinated. And I think they may have themselves suffered from a couple of bouts of infection from Pertussis or Whooping Cough. And this was a reason why the dad wanted to have the children vaccinated.

Damien Carrick: He also had some practical concerns about what doors would be open and closed to them as people who weren’t vaccinated.

Cameron Stewart: That’s right. Increasingly, it’s difficult for people without vaccination to access particular services, or else there’s certainly more bureaucratic requirements for people to explain why they haven’t become vaccinated.

Damien Carrick: I think the father was concerned that the daughter wanted to enrol in a holiday gymnastics program and to enrol she was required to be vaccinated. He also said that some of his relatives didn’t want their children to have contact with his children for fear of being infected. And also I think the family were invited to a wedding in Indonesia and it would not be possible for them to go there without both regular vaccinations and other vaccinations for illnesses prevalent in that country.

Cameron Stewart: That’s correct. And this is part of a wider trend, I think, as well. And we can see that in some of the legislation that’s come down in recent years; for example, in New South Wales the requirement that your vaccination schedules be provided to day-care centres under the new laws passed towards the middle of last year. So you have to have your proof of your vaccination or you have to have documented proof of your conscientious objection to vaccination before you’re allowed to enrol in a childcare centre.

Damien Carrick: That’s in New South Wales, isn’t it?

Cameron Stewart: That’s in New South Wales.

Damien Carrick: What evidence did the mother present to the court to support her assertion that there are risks associated with vaccination?

Cameron Stewart: Well, that’s interesting and that’s part of the history of the action is that she was constantly trying to find information that would satisfy the court—scientific validity that vaccination was dangerous. And of course part of that is that long-running concern over the now damned research of Dr Andrew Wakefield concerning the links between vaccination and autism, but also other pieces of information that associate particular types of risk with vaccine-related injury.

But none of that evidence has any credibility and none of that evidence was eventually accepted by the court.

Damien Carrick: And I understand there was actually evidence from a senior immunologist, a Professor K, that both children didn’t have any allergies or any other contraindications to vaccination. They weren’t anaphylactic, for instance.

Cameron Stewart: Exactly. I mean, vaccination is like any treatment; there are the possibilities of side effects. But those side effects are very low in prevalence and they’re very rare. But it’s always appropriate to make sure that your children aren’t suffering from any particular condition that might expose them to a greater risk of harm. Having looked at these particular children, that professor was very confident that these children were not susceptible to a greater risk of vaccine-related harm and that there wasn’t any medical evidence or other evidence that would have supported that claim.

Damien Carrick: Though one parent says, ‘Don’t vaccinate,’ one parent says, ‘Vaccinate,’ what did Judge Garry Foster decide?

Cameron Stewart: In the end, Justice Garry Foster decided that he wasn’t going to allow the matter to continue, that the successive adjournments that had been going on for a couple of years in this matter were no longer to be accepted and evidence of Professor K was determinative in that the vaccine should go ahead. And the approval was given for vaccination.

Damien Carrick: That was a case, I think… well, it was decided late last year but just reported or published very recently. How common are these cases, Cameron Stewart?

Cameron Stewart: They occur quite regularly and I think they’ve become more relevant in recent years, primarily because of I think a greater push of the anti-vaccine movement and the use of materials by them across the internet and the availability of that material. So spreading that material I think has led to an increase in the amount of concern about vaccination and I think that then in turn has led to disputes about whether children should be vaccinated when the family is no longer together.

Damien Carrick: There was a very interesting 2012 decision, Kingsford and Kingsford. There you had a situation where the mother and father split, the mother wanted the child homoeopathically immunised by her, and she sought an injunction from the father obtaining any immunisations—who I believe, incidentally, he’d re-partnered and without informing the mother, the father’s new wife, who had a baby with her new partner, had the child vaccinated for a range of illnesses. What happened in that case?

Cameron Stewart: That particular case is, as you said, a reflection of the mother’s beliefs in homoeopathy. And the philosophy of homoeopathy is that—it’s actually quite compatible in one sense with the philosophy of vaccination—is that you would be introduced to a small amount of whatever makes you ill and that would be a way of protecting you against further illness. And you could see the sort of the basic connections between those kind of philosophies and that of vaccination—the introduction of an element which would mimic the disease, it’s a very similar idea.

And Samuel Hahnemann, the father of homoeopathy, was a very strong supporter of vaccination; however, in modern times the homoeopathy movement has created its own kind of vaccination, which is called homeoprophylaxis. And homeoprophylaxis is promised by homeopaths to be the equivalent of modern vaccination techniques without any side effects. And it was that particular vision that the mother was pushing in this case.

Whilst the mother in this particular case was viewed very positively by the court and her evidence was accepted as being something put forward truthfully and honestly, and the judge in turn wasn’t as happy with the evidence put forward by the father and the behaviour of the father in relation to providing vaccination…

Damien Carrick: In relation to having the step-mum take the child to the doctor and get jabbed without the approval of the biological mother.

Cameron Stewart: In the end, the vaccination was in the end approved anyway.

Damien Carrick: Why? What was the reasoning?

Cameron Stewart: Well, I think again it’s the concern that the science here is quite clear. It supports vaccination, it does not support homeoprophylaxis. The ultimate test here is not really about the behaviour of the parents—it’s not really about whether we like one parent or the other; the ultimate test is whether we think that the vaccination is in the best interests of the child. And on that basis, the science suggests very clearly that it is.

Damien Carrick: So far we’ve been talking about disputes involving very young children, but there was, I think, in September last year a decision in the UK involving older children and the court also addressed what the views of those older children were around vaccination. What were the facts in that case?

Cameron Stewart: The particular case, the children were of older years and in the teenage years, but still children. And they’d been influenced by their parents into the belief that vaccination was dangerous, again based upon the discredited research of Wakefield. And what’s interesting to note about children is that whilst children, even when they’re competent, can consent to treatments which are in their best interests, they cannot refuse treatments which are judged to be in their best interests.

And we’ve seen that in other difficult areas of end-of-life decision making; for example, a 17-year-old teenager last year in New South Wales refused a blood transfusion for cancer treatment on the basis of a religious belief, but they… the court overturned that, even at the age of 17. Those cases of end-of-life decisions are at the extreme end and you can see why the court would err on the side of caution to preserve life. But here with vaccination we’re talking about much lower risks, but nevertheless the court still believes that the children’s views and beliefs have been influenced by poor evidence, by poor science, and ultimately the court could make the decision about what was in the child’s best interests, even for very old children, children that are almost adults.

Damien Carrick: I think the mother argued about her concerns about side effects of vaccination. She also was concerned about imposing vaccination against the wishes of the girls, in particular, one of them I think who was 15 who suffered from anxiety and she was a vegan and she objected to the contents of the vaccine, which included animal-based products like gelatine. The judge said, ‘Look, I’m sorry, I’m still going to consider those, but override those concerns.’

Cameron Stewart: And this is the power of the judiciary when they’re caring for children. There’s a very ancient power, the parens patriae power, which allows the courts to make decisions for children up to the age of majority. And it can overturn the well-considered and even competent decisions of children to refuse treatment, although in this particular case the judge was concerned about the influence of the poor scientific information that the children had been given.

Damien Carrick: That decision was very interesting, because it was a legal one but the court did talk about that discredited research of Dr Wakefield and went on to articulate that it had been published in The Lancet, it had raised connections about vaccination with autism, but then went on to really spell out in a bit of detail that his research had been discredited and that The Lancet had retracted his paper and that his research was now not being approved by the General Medical Council in the UK. So there was a real exploration of the science as well as the law.

Cameron Stewart: And that’s also interesting. Again, it comes back to the best interest test and the way that the judges are trying to satisfy that by using the best medical evidence available. And the judges, especially in Australian… in the Australian context, have been very wary of allowing the best interest test to become completely medicalised.

But I think in these areas, where we have a choice between accepting the consensus scientific position and a position of others who have been discredited scientifically, I think the decision for the courts is relatively easy.

Damien Carrick: You’re listening to the Law Report on RN and I’m speaking with Professor Cameron Stewart about disputes, legal disputes, involving the vaccination of children.

Cameron Stewart, generally speaking, if both parents are in agreement about a decision not to vaccinate a child that’s the end of the matter. But it’s not always the case. There was the decision of Re H in Queensland back in 2011. Tell me about that.

Cameron Stewart: Some particular cases will have children who are exposed to risks of more serious infectious diseases, and they’ve come into contact with the medical system. And the medical officers, the treatment team, will understand that the child has been exposed to risk and then will ask that the child be vaccinated. And then the parents refuse. So what we’ve got now is we’ve got a contact with an opposing view, the view of the treatment team. And that’s what happened in this particular decision.

Damien Carrick: The mum had chronic Hep B, I think.

Cameron Stewart: That’s right and the concern there was there was exposure to risk. There’d been other cases concerning hepatitis as well with very young children being born to women who were infected. There’d been other cases involving HIV, where the mother has HIV and the child is also at risk when the child was being born of being exposed to HIV. And all of these are situations where the child could either be vaccinated or provided with medications which will dramatically reduce the chance of infection.

But of course it’s a balance of practice and practicality with the rights of the child. In some cases it may even prove impossible for the monitoring and policing of medications and the courts will, in those situations, recognise the impracticality of continuing to order treatments. But when we have things like vaccination, it’s only one treatment, then it’s more probable in those situations the courts will order that the child be taken effectively into custody for the purposes of being immunised.

Damien Carrick: In this case, the court ruled that the child should have, I think, a Hep B vaccine and some kind of haemoglobin as well, because if they are given within a window of five to seven days after the birth that will dramatically decrease the child’s likelihood of getting transmission from the mum of Hep B.

Cameron Stewart: That’s correct. And in other cases, where we’ve got different treatments that are going to require continuing and ongoing supervision, we can see more reluctance on the courts then to get involved, but with vaccinations, where it’s a single… normally a single treatment, there’s less reluctance to get involved.

Damien Carrick: There was a case in New South Wales, Re Jules, in 2008, where the parents defied an order—again, I think the mum had Hep B—and in that case the parents defied the order and hid their child until the window of effectiveness had passed for this kind of treatment. And I think the court then had to work out, when they re-emerged, whether to charge the parents with contempt of court. And then it had to make some very interesting public policy calculations about what was in the best interests of the child, their siblings, the message to send out to society.

Cameron Stewart: They did. And in the end, the court basically allowed the parents to go free, although after some fairly heavy admonition about their behaviour. In that particular case Justice Brereton was the judge who was faced with this difficult decision. You have an order made in the best interests of the child, the jurisdiction of the court was disrespected, the parents ran away, but the opportunity for the benefit had disappeared.

So again, balancing the interests of the child against what’s practical, there was no longer really a practical opportunity to provide the treatment. And in that situation, while the court had an obvious jurisdiction and an obvious power, the judge in the end believed that there was no point in continuing the wardship order, the custody order, and gave back all the parental powers to the parents.

Damien Carrick: Cameron Stewart, speaking more broadly, or big picture way, do you think the courts get it right? Do you think they’re applying the right tests when they’re coming across these incredibly difficult cases?

Cameron Stewart: I think they do, because what they’re doing is they’re listening to the science. When courts do that, obviously they’re subject to whatever the scientific knowledge is at the time, but we can’t do any better than that. And listening to the science in the area of vaccination I think is key, because it’s at that point you can properly balance out the interests of individuals against the interests of the public. It’s only on the basis of a firm understanding of the science that you can judge what the real risk is.

And I think what we have in these cases with the vaccine objections are very honest and in one sense heartfelt belief that they don’t want their children to be subjected to risk. And you have to respect that. But what is it being based on? It’s not being based on real evidence, a real hard scientific evidence. And that’s when the court does have a role to play, because the parenting decisions are poor. And the court can review them—and should.

Damien Carrick: It’s interesting though, because we’re talking about courts getting involved only when you have a dispute between two parents or a medical team treating the child who say, ‘No, we need the court to intervene.’ If you have two parents who are on the same page and no particularly serious immediate medical issues, then it is totally up to… we accept that it is the right of the parent not to vaccinate. So we are drawing a line in the sand, aren’t we?

Cameron Stewart: Yes. Unfortunately it’s a fuzzy one and people are tripping over it. Look, maybe we need to go back to debates about how we encourage people to vaccinate. In the past, a very long time ago, there was compulsory vaccination, but I think the experience of that compulsory vaccination was that it was counterproductive, that in the end they were causing more problems for people than the benefit—the benefit of compulsory vaccination was being outweighed by the other social problems that it was causing.

Damien Carrick: Professor Cameron Stewart, based at the University of Sydney Law School.

(Music)

Damien Carrick with you and you’re listening to the Law Report on RN, also available to podcast or as audio-on-demand from the RN website at abc.net.au/rn.

So, if compulsory vaccination is not a good idea, what’s the best public policy response to concerns about vaccination? Jon Wardle is a chancellor’s research fellow at the Faculty of Health at University of Technology, Sydney. He says the best strategy is education and effective communication. And Jon says, overall, the message is getting through.

Jon Wardle: Actually, they’re quite good. Australia has one of the highest vaccination rates in the world. There are pockets of concern. So, around northern New South Wales, the northern beaches of Sydney, there are some places where the vaccination rates do get below the herd immunity levels. But generally speaking, the rate of non-uptake of vaccinations is quite low and it doesn’t seem to be increasing as much as the media would actually suggest that it is. So, actually, we’re doing quite well.

Damien Carrick: This is a legal program, not a science program, and I don’t want to revisit the scientific consensus, which is very clear. But in your view are there any sort of legitimate concerns around safety that feed into the decision not to vaccinate a child or a family?

Jon Wardle: In a certain aspect, yes. Ultimately, if you don’t vaccinate then you expose your child to more risk than you do when you do vaccinate. There are risks to vaccination. Some of these can be mollified quite easily. So if your child’s ill, you’re best to rebook your appointment for vaccination rather than go in. That will reduce the chance of skin reactions and that kind of thing.

But there are some people who do have allergies to specific components. Some people have adverse events that can be quite serious. But the chances of these are quite minute and realistically, the chances of your child having an adverse event, a serious adverse event, from not vaccinating are far higher than they would be from, you know, the potential risks of vaccination.

Damien Carrick: So the scientific consensus is totally clear and it becomes a… when we’re talking in public policy and regulatory terms, it becomes an interesting issue of both carrot and stick. From the beginning of 2014, New South Wales now has legislation around vaccinations and childcare. What do these so-called no jab no play laws require?

Jon Wardle: Basically they require sign-off from a GP essentially that if you want to enrol in a childcare centre, you have to go through the process of actually getting your objection to vaccination recorded. Which is interesting because there’s been a bit of media about the rise in conscientious objection as though it was a rise in anti-vaccination sentiment. What seems to be occurring is that more people are objecting because they have to. Basically the object of this law is that by making the parents go to a GP or a medical practitioner they’re actually getting balanced advice on the benefits and risks of vaccination.

And usually this is enough to target the fence sitters, the people that have concerns. If you are told about the risks of vaccination, you are told about the benefits, the benefits are extraordinary compared to the risks. The benefits of not vaccinating are actually very underwhelming, the arguments for it. So generally, having that discussion can be really helpful, particularly for those fence sitters. There’s always going to be about… they reckon it’s about 1.4 per cent of the population that just won’t vaccinate and you’ll never change their minds. They’ve existed since federation, they’ve consistently been around that level and we can probably expect that level to continue in the future. But the real primary care focus and public health focus is on those fence sitters, the people that have questions and concerns, you know—and sometimes legitimate concerns—but they’re quite easily swayed towards vaccination.

Damien Carrick: And so as long as parents fill out that conscientious objection form and present it to the childcare centre, they can access the centre. So childcare centres can’t say, ‘Well, you’ve filled out your form but we don’t accept children who have not been vaccinated.’

Jon Wardle: Yeah, and there are some other provisions—for example, removal of those children during outbreaks and that kind of thing—but generally there’s no denial of access. Yes, that’s right.

Damien Carrick: Are there other states or territories with similar legislation?

Jon Wardle: New South Wales has really been a leader on vaccination laws. It’s been discussed in a lot of other states and territories and they have varying levels of action on this, but really New South Wales is where this has really come to the fore, I guess.

Damien Carrick: What about at a commonwealth level? I understand there’s also a link now between eligibility for commonwealth welfare entitlements such as Family Tax Benefit B and vaccination.

Jon Wardle: Yeah and this has been around for a while, too. So currently to be eligible for that tax benefit you need to either have your child’s records being fully immunised or you have to be… you have to register as a conscientious objector. There have been a few problems and discussions with this. You know, one of the things is obviously the medical community is very concerned and some general practitioners are actually refusing to sign those forms. There’s been a lot of discussion over the potential legal risks that those practitioners actually have by not signing those forms, as well. So from a legal perspective it’s quite interesting. But generally the government’s tried to be as inclusive as they can be.

Damien Carrick: It’s difficult if doctors are providing information and then when that information is rejected they don’t sign the conscientious objection form. That leaves people I guess without freedom of choice, even freedom of informed choice.

Jon Wardle: Yeah, and some of the legal advice that some of the medical defence organisations have had and the medical boards have had, for example, have suggested that those doctors could potentially be liable for a complaint against them if they didn’t sign that form, too. So it’s an interesting choice that many practitioners face, where they can be in complete disagreement with their patients but they still have to consider what their obligations are as a primary care practitioner. So there are certainly aspects to ensuring that your patients are vaccinated, but you can’t necessarily deny them care because they choose not to either.

Damien Carrick: I guess these New South Wales no jab no play laws and the commonwealth entitlement to Family Tax Benefit B rules, they’re all about having the conversation, or they’re meant to be about having the conversation. There have been a number of legal and regulatory proceedings, in New South Wales especially, involving information put into the public domain by anti-vaccination groups. So about that kind of conversation. Tell me, Jon Wardle, who are the Australian Vaccination-skeptics Network and why did they recently add the word ‘sceptic’ to their title?

Jon Wardle: Well, they added the word ‘sceptic’ because they had to, essentially. The Australian Vaccination Network were originally promoting themselves as a centre for balanced advice on vaccination when in reality what they are doing is promoting an anti-vaccination agenda. The Office of Fair Trading felt that the Australian Vaccination Network, with its current mission statement of providing balanced advice, wasn’t representative of what they are doing and was potentially misleading to the public. So that’s why they were ordered to change their name.

Damien Carrick: The order was upheld, I think, by the New South Wales Administrative Decisions Tribunal and in February this year the group changed its name to Australian Vaccination-skeptics Network. The group also lost its charitable status, didn’t it?

Jon Wardle: It did, and I actually see this as evidence that the system can actually work, to be honest. A lot of people denigrate the Office of Liqueur and Gaming for originally granting this charity status in the first place, but when you look at the perspective of the, you know, bureaucrat involved, what the Australian Vaccination said they were going to set out to do is quite an honourable agenda. Unfortunately they didn’t live up to that agenda and they actually did quite the opposite. Because they weren’t actually working in the public interest in the way that they were saying that they were, the Office of Liqueur and Gaming essentially stripped them of their charity status.

Damien Carrick: And all the tax advantages which accompany status as a charity have been withdrawn.

Jon Wardle: Yes, yes.

Damien Carrick: The legal proceedings haven’t all gone against what is now known as the Australian Vaccination-skeptics Network. There were a few years ago proceedings commenced by the New South Wales Healthcare Complaints Commission and what were they? And they ultimately didn’t lead anywhere, did they? Or were ultimately overturned.

Jon Wardle: They were overturned but they did actually result in a change of the law, which has allowed them to continue those proceedings. So the actions initially against the Australian Vaccination Network by the Healthcare Complaints Commission were focused on the fact that it was a misleading organisation, it was, you know, purporting to promote a balanced argument but was actually only promoting one side.

And the arguments themselves actually weren’t declared invalid, they were actually upheld. The problem was that the Supreme Court actually held that the Healthcare Complaints Commission actually didn’t have jurisdiction over an organisation like the Australian Vaccination Network as they would for individual healthcare providers or healthcare facilities like hospitals and practices.

Damien Carrick: The idea was that they were providing information, they weren’t actually providing information to an individual healthcare patient or client.

Jon Wardle: Correct, yeah. And so what actually came out of that was a very valuable learning experience for the Healthcare Complaints Commission and the law was actually changed to allow that jurisdiction to occur.

Damien Carrick: These disputes—the ones we’ve been talking about—they raise really interesting questions around the extent to which… I mean, we want to have robust public debate around these issues. Where do we draw the line between allowing that debate and having regulators and authorities stepping in and saying that debate should be restricted or confined? It’s quite an important philosophical question, isn’t it?

Jon Wardle: Yeah, I think so. And I think we need to focus on what’s misleading and what’s potentially dangerously misleading. And I think you can still allow for disagreements within that as long as they’re actually held as disagreements and not facts.

So with the anti-vaccination debate, one of the really key things that’s happened there is it’s actually made the AVN identify itself as an anti-vaccination group. And I think that this will actually reduce the power that it has over parents. Because one of the things that has actually occurred in this scenario is that parents have questions about vaccination—I think parents should have questions about vaccination, I think parents should have questions about everything that involves their child. And parents ultimately are quite selfish when it comes to their children; that’s what makes them parents and that’s sort of built in from an evolutionary perspective.

But what often you see is that when parents do have questions they can’t often… well, they’re not allowed to ask their medical practitioners, they’re not allowed to ask the public health community, so when they look around, the only people that will answer their questions are the anti-vaccination groups. The public health community probably doesn’t engage with parents on this issue as much as they should. I think because it’s such an open and shut and obvious case for many people in the public health and medical community, they don’t quite understand the parents’ concerns when they do come up and so they tend to be dismissive of them.

Damien Carrick: So you would say that on the one hand we need to improve the communication skills of the doctors and the public health community, but on the other hand we do need to make sure that the information that is being put out by the other side is clearly labelled as what it is.

Jon Wardle: Yeah. And I think there are provisions. The Healthcare Complaints Commission of New South Wales are currently going through some of the statements that the Australian Vaccination Network are making that are demonstrably false. So, you know, they’re talking about toxic chemicals that are in vaccinations that haven’t been in vaccines in Australia for over a decade—that kind of demonstrably false information. I think there’s lots of avenues to actually reduce that and highlight that as what it is, which is demonstrably false.

But at the same time we need to not look at just why people aren’t vaccinating but actually help encourage them to vaccinate. There are a number of issues there. When I was working at Medicare Local in Brisbane, we identified two major areas of low vaccination rates. One was the inner city, which you could probably safely assume the majority of those were people who were concerned about vaccination and were conscientious objectors, because the rates were higher in those areas.

But there was also a large group which were single parents, they had no access to transport. You know, we require parents to follow this quite onerous vaccination schedule and don’t always offer them a lot of support to get there. So if you’re a single parent and you’re a casual worker and you get offered the choice between having a shift which means food on the table or taking your child to a GP and paying out money, and, you know, you can put that off till later but sometimes forget, then obviously you’re going to take that first option. So a lot of it’s about access as much as it is about false information.

Damien Carrick: Jon Wardle, chancellor’s research fellow at the Faculty of Health at University of Technology, Sydney.

That’s the Law Report for this week. Do visit us online at abc.net.au/rn where you can find podcasts, audio-on-demand, and program transcripts. Thanks to producer Anita Barraud and audio engineer Mark Veer. Talk to you next week with more law.