The Delhi High Court on January 23 ordered all schools to get signed consent notes from parents before conducting the measles and rubella vaccination drive for students in the national capital.

The Delhi High Court on January 23 ordered all schools to get signed consent notes from parents before conducting the measles and rubella vaccination drive for students in the national capital.

The compulsory Measles and Rubella Vaccine Immunisation Campaign by the Arvind Kejriwal government has been officially filibustered, with the HC bench forbidding forcible and non-consensual administration of the vaccine on children without their parents’ consent, even as measles outbreaks are being recorded in several pockets of the US known for its infamous anti-vaccination movement. This campaign is a part of the Centre’s inititative to eradicate measles.

The court made it clear to the AAP government Tuesday that the risks of administering the measles and rubella vaccine have to be indicated in its advertisements on the immunisation drive. “Contraindications are necessary for consent, whether positive or negative. You have to tell people about the risks,” Justice Vibhu Bakhru said, after the Delhi government stressed that there was no need to convey this information lest it should discourage people from getting vaccinated.

Earlier this month, 70 Mumbai schools also refused to launch the measles vaccination programme, reported Times of India.

Here’s what happened

The vaccination drive, which was supposed to start in Delhi on Wednesday, would have covered more than 55.5 lakh children — between the ages of 9 months and 15 years — within five weeks.

Parents of a few minor students moved court, alleging that the MR campaign is a “violation of the fundamental rights” as consent wasn’t taken from their wards, even though the Centre had explicitly mentioned that the vaccine would not be administered without informed consent of parents.

“There has to be express consent. It is a matter of bodily integrity. You cannot touch someone’s body without their consent,” the parents’ counsel stated in court, after failing to arrive at a consensus with the Directorate of Education on the latter’s December 12 notification claiming express consent was not required.

Concerned parents also accused the Delhi government of issuing directions to compulsorily inject children with the MR vaccine without taking into account the past vaccination history of the child, wherein the child may have already been vaccinated against measles and rubella.

How the court ruled

Delhi High Court Justice Vibhu Bakhru’s court order thereby deferred the programme citing objections from parents, adding that consent is the precondition for vaccinations and the MR campaign directly violates “bodily autonomy” and “informational privacy”.

“Since it is apparent that the consent of the parents is not obtained and respondent are proceeded on the basis that the consent is not necessary, the campaign for administering the MR campaign is deferred till further orders from the court,” the court noted.

Appearing for the Delhi government, advocate Ramesh Singh submitted that an “opt out” option could be created for the parents who do not want their wards to get the vaccination, which too was objected to by the petitioners.

“For now, we have deferred the vaccination campaign till the next hearing scheduled on January 21. We are studying the order and looking at how to seek consent,” said Dr Nutan Mundeja, Delhi’s director general of health services.

Fact check

Measles affects an estimated 2.5 million children in India, and killed 49,000 of them in 2016. The latest Global Measles and Rubella Update said that India had 56,399 confirmed measles cases and 1,066 confirmed rubella cases in 2018.

Measles is an extremely contagious air-borne disease whose symptoms include fevers, coughs, rashes and a runny nose. It can be spread by sneezing, coughing, or even just breathing. In rare cases, it can be fatal and is considered extremely dangerous for babies and vulnerable people. In fact, measles is a leading cause of death in children with India accounting for one-third of all measles-related death in the world.

Rubella causes birth defects such as irreversible deafness and blindness in nearly 40 thousand children every year in India. According to an expert from the Vaccine Evaluation Centre of the University of British Columbia, immunisation coverage rates should ideally be above 90% to prevent outbreaks, and above 95% to “really be able to stop transmission”.

During the hearing, the DoE also informed the Delhi HC that the opt out consent was necessary as a target of 95% coverage is necessary.

Are the parents of children in Delhi anti-vaxxers? Doesn’t vaccination benefit the children?

Vaccination definitely benefits the children. And the parents in this case aren’t anti-vaxxers. They are not opposed to the vaccination itself, unlike parents in UK and USA who oppose vaccinations on unscientific or pseudoscientific grounds.

Although the larger ulterior agenda of anti-vaxxers is not clear, it is believed to stem from a lack of faith in the government and healthcare practitioners. This hesitation gained momentum and assumed credibility in 1998 when Andrew Wakefield, a British former gastroenterologist and medical researcher, published a case series in the Lancet medical journal that suggested that MMR vaccines may, “predispose to behavioral regression and pervasive development disorder in children”.

Although the respected medical journal later redacted the article, UK’s General Medical Council revoked Wakefield’s medical licence, and the American Academy of Paediatrics repeatedly released statements and research papers debunking any link between vaccination and autism, the bad science had taken root in public imagination.

The anti-vaxxer believers are often classified in the same category as the flat earthers and climate change deniers — deliberately ill-informed proponents of bad, limited and pseudo science who wilfully turn a blind eye to empirical research. The parents who have filed the petition against the Delhi government aren’t doing any of that.

The question here arises because of the change in site of vaccination that transfers the responsibility to the school and/or the government and removes the parent and/or guardian as the source of consent for a minor.

As the Indian Express reported, the World Health Organisation recognises oral, written, and implied consent for vaccination. It is only when children are present for vaccination unaccompanied by their parents, it is challenging to determine whether parents indeed provided consent. As a result, WHO encourages countries to adopt procedures that ensure that parents have been informed and agreed to the vaccination.

When children are vaccinated in hospitals or healthcare centres, it is usually the parents or the guardians who bring the child for vaccination. In that scenario, the minor’s consent, through the proxy of the parent/guardian, while not explicitly given, is implied.

When the site of vaccination shifts to a school because it is mandated by the government, the government assumes a paternalistic role that robs the minor of his/her rights by removing his/her proxy, that is, the parents from the equation. The underlying logic here is that when a child is sent to school, it is primarily to be educated. Health remains the domain of the parent/guardian, and the school doesn’t have a say in it.

Furthermore, at a school, instead of at a hospital or healthcare centre, due to the numbers involved, individual vaccination histories are not taken into account.

In a report by Times of India, it was apparent that this form of consent is also class-driven. Parents of children in private schools want individualised treatment for their children, and can afford to do so.

In the aforementioned report, it appears that private schools are arguing that this “opt out” option should exist only for economically well-off families. In fact, a statement by one of the trustees reeks of ignorance when s/he assumes that “everyone has access to a paediatrician and regularly inoculate their children”. If that were the case, government sponsored and run vaccination drives would not be required at all.

Unique situation in Delhi

The nationwide campaign against measles which began in 2017 is currently underway in Madhya Pradesh and Bihar, and only three states, West Bengal, Sikkim, and Rajasthan, remain to be covered. However, private schools across the nation have voiced their discontent.

“This is a unique situation; so far, none of the other states have had a petition filed against the campaign, except for Kerala where too the court quashed it,” said Dr Pankaj Bhatnagar, in charge of monitoring the coverage of Polio and MR vaccine for the World Health Organisation.

Does the threat of vaccine hesitancy call for laws making vaccines mandatory?

The Delhi government must amend for foregoing full disclosure and consent in medical situations. At the same time, it is necessary to recognise the importance of vaccination and her immunity. Steps taken to undermine vaccination drives run the risk of endangering public health, and reversing decades of progress by bringing eradicated diseases back on the WHO’s roster.

In times of such crisis, more oversight and legislation may be necessary to counter this growing scepticism in regulation. For example, California Democratic Senators Richard Pan and Ben Allen introduced Bill SB277 in 2016, requiring nearly all school children to be vaccinated after a measles outbreak at Disneyland. Indian lawmakers may perhaps need to contemplate such measures, in light of the recent setback.

In addition, the government, both central and states, must take into account concerns of the stakeholders, especially parents, before implementing such paternalistic policies. While vaccination falls under public health and thus the onus for it lies with the government, the school is not the appropriate site for fruitful engagement.

If the government intends to go ahead with a modified version of the initiative, it must take into account children’s individual histories.

In related news, the central government on Thursday postponed the next polio immunisation indefinitely as the country currently grapples with an acute shortage of polio vaccines. This arrives in the wake of a massive controversy where batches of the oral vaccine were found contaminated with type 2 polio virus last year, leading to the cancellation of the manufacturer/supplier’s licence.

Prarthana Mitra is a staff writer at Qrius. Aditi Agrawal is a senior sub editor at Qrius.

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