The general movement in medical practice and ethics over the last 40 years has been away from paternalism towards strong respect for the autonomy of individuals. So a recent judgement in the High Court in London that an 11-year-old and her 15-year-old sister be vaccinated against their wishes was very surprising.
The case involved the MMR vaccine and the girls’ divorced parents. While their mother didn’t want them to be vaccinated, their father, who agreed not to vaccinate them largely on the basis of now discredited fears about MMR, regretted his decision after a measles outbreak in Wales.
It’s not the first time that disagreements have been raised over a child’s health by warring parents, often involving life-saving/sustaining decisions. We’re also not always privy to the wishes of the child.
In this case, both children clearly said they didn’t want to be vaccinated because they were concerned about their mother’s wishes, and ingredients in the vaccine. The eldest child, a vegan, was clearly worried that the vaccine was made using egg albumin. However, a court-appointed officer said they didn’t have a “rounded appreciation of the pros and cons of the vaccine”, in part because when asked what would happen if they got measles, mumps or rubella, the 11-year-old said she didn’t know what ingredients would be used in a treatment if she contracted mumps, measles or rubella. The officer also thought that the children had been strongly influenced by the objections of their mother. On this basis, and the best interests of the children, the judge ruled that they must be vaccinated.
The decision is controversial, not just because both children were considered together despite their different ages, but because the 15-year-old had already received the initial MMR vaccine and the next vaccination would be a booster shot.
Can a child refuse treatment?
Ethically, there are two questions we need to ask: is the child an autonomous decision maker with the right to refuse treatment? And if not, what is in their best interests?
In the UK, people over 18 are assumed to be legally competent with the right to refuse or consent to medical treatment. Consent is there because individuals deserve respect and bodily control and this is the age around which most are considered competent to decide. Below that age, some will be and some won’t. At 15, we can’t presume someone will be competent and autonomous, but we can’t assume they aren’t either. Of course, this clearly isn’t just a legal issue but an ethical one.
There are reasons to also be concerned about the case worker’s dismissal of the 15-year-old’s competency, which focused on her decision rather than how she made it. The two children were also talked to together and the judgement about their competency was conflated. The primary concern raised by the case worker was that the children had a lack of balanced information, something easily rectified – particularly when the case worker judged both children to be “very bright”.
Under-18s still have relevant views
It’s not unreasonable to consider the teenager’s views as for dissenting – including her vegan values – as relevant. And to question whether it really is in her best interests to force her to receive a vaccine regardless of what she thought.
There are reasons to doubt forcing a vaccine would be in her medical best interest. A vaccine isn’t a medical treatment, it’s a preventative measure which may have no medical benefit, for example if someone is never exposed to the disease. For the older child in this case, it was an MMR booster. About 10% of children are not fully immune after their first dose of MMR, the booster reduces this to 1%. So you could argue she was already significantly immunised.
It is much more likely that the girl would be harmed by the psychological effects of forced treatment and the damage that would be caused in the relationship between her and medical professionals now and in the future – particularly as she believed the vaccine to be unethical. And what if she refuses still, would she be physically restrained to deliver the vaccine? This seems far-fetched in a non life-threatening situation.
Given the small potential benefit and the possible harms, it’s at the very least disputable that vaccination is in her medical or best interest more generally. And given the psycho-social costs of forcing an intervention on someone, we should be very careful about the certainty of its benefits, and a refusal – even when competency is in doubt – should never be set aside lightly.
So why does the court ruling differ so much from an ethical judgement? The court tends to play it safe in regards to assessing the autonomy of minors, and only lets autonomy be a deciding factor when they are consenting to treatment. There’s also an ongoing conflation between medical best interests and overall best interests – in this case neither was made. But most importantly, the court aims to decide primarily on the grounds of what is in the best interests of the child. While that sounds laudable it’s an unusually high standard to which to hold parental decision making – and unsurprisingly, doesn’t always sit well with our intuitions.