Punch ups over jabs

Court decisions related to vaccinations are starting to show a pattern. 

Within society there is a debate concerning whether children should be vaccinated. This is a hotly contested and highly emotive question for many. There are those who refrain from vaccinating their children against childhood illnesses such as whooping cough, the mumps and the measles. It becomes an even more vexed issue, however, when separated or divorced parents have different views about vaccinating their children.

For the sake of this article, the terms ‘vaccination’ and ‘immunisation’ are used interchangeably, despite their meanings not being exactly the same.

In a recent ruling, a divorced father was granted liberty to vaccinate his children over the objections of the mother. The judgement demonstrates the difficulties courts face in determining what is ‘in the best interests of the child’ when the parents hold completely opposing approaches to vaccination.

The court rejected the mother’s claims that the children, who turned 14 and 12 during the year of the trial, were at an increased risk of experiencing “vaccine damage” due in part to various allergies she believed they suffered from.

During the proceedings, the 42-year-old mother submitted hundreds of documents about the risks of vaccination, such as an alleged link to autism. The father, aged 52, said he agreed with the mother’s anti-vaccination view during their marriage only “for the sake of peace in the household”, but since their divorce he had come to realise his son and daughter were missing out on extracurricular activities because they were not immunised. He asserted with some justification that it was difficult for the children to access particular services without vaccination. For example, the daughter wanted to enrol in a holiday gymnastics program that required her to be vaccinated. Some of the father’s relatives were unwilling to have their children socialise with his and he was worried they would be excluded from school during an outbreak of an infectious disease. Finally, the family was invited to a wedding in Indonesia and it was not possible for them to go without both typical Australian vaccinations and others for illnesses prevalent in Indonesia. The father’s argument was strengthened by the assertion that the lack of immunisation had a detrimental and limiting effect on the children’s access to life experiences. In other words, there was not just a risk of illness; the lack of immunisation also restricted the normal developmental activities the children could partake in.

The court accepted evidence from a senior consultant in immunology that both children were healthy and did not have any allergies or other contra-indications to being vaccinated. The consultant recommended the children be brought up to date with routine immunisations and the court made orders accordingly.

In another case, in 2012, the parents had separated and the mother wanted to homeopathically immunise the child herself; hence, she sought an injunction against the father obtaining any modern medical immunisations. The mother’s homeopathic beliefs were that “one introduces a small amount of whatever makes you ill and that would be a way of protecting you against further illness”. Her rationale was that the introduction of an element that would mimic the disease was very similar to traditional vaccinations. Further, the mother argued that homoeopathy had created its own kind of vaccination, the equivalent of modern techniques, without any side effects. The mother’s wishes were overridden and the child was vaccinated with modern methods.

A 2011 Queensland case concerned a child exposed to something more threatening than random transmission of infectious diseases, writ large. The infant was born to a mother who had chronic hepatitis B and the medical evidence was that the infant had a 10 per cent to 20 per cent chance of infection at birth and if contracted, had a 90 per cent chance of later developing a chronic hepatitis B infection. If the infant did become chronically infected, there was a 25 per cent chance of developing liver cirrhosis or liver cancer and premature death would be probable. At the time of the hearing, there was no way of knowing whether the infant had contracted hepatitis B; any test was not possible under the age of 9 months. Prophylactic treatment against the possibility of the infant contracting hepatitis B was available and this was the urgent decision required of the court, over the medical and religious objections of the parents. The vaccination treatment, consisting of two intramuscular injections, needed to be given within a window of five to seven days after birth. Interim orders were made for the infant to receive the urgent vaccination, despite the parents’ objections.

For parents to vaccinate their child against their wishes runs counter to their no-doubt genuine and intimate feelings to protect their children – especially from state interventions. Accordingly, it is not a surprise that there are cases where the parents take steps, in the furtherance of their beliefs, to thwart or disobey such court orders. Namely, unable to persuade a court to rule in their favour not to immunise their child, they take it upon themselves to takes actions in contempt of such orders. In NSW in 2008, one set of parents, when confronted by the same scenario as the Queensland couple mentioned above, defied a court order and hid their child until the window of effectiveness for any vaccination had passed. Perhaps not surprisingly, the serious charges of contempt of court were not vigorously pursued against the parents, as the indignation of their beliefs was genuine, as opposed to mere disrespect for the authority of the court.

Even so, the recent court decisions make one thing clear. Despite the genuine and passionately held view of parents who are anti-vaccination, the courts will, in the face of the weight of contemporary medical opinion, favour that opinion and override the expressed counter-wishes of the parents, except in the most rare and exceptional circumstances.

Scott Trueman is a lecturer in the school of nursing, midwifery and nutrition at James Cook University.

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