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Brodies , 09 MAR 2018

Parental consent to medical treatment

Leonie Burke


Parental consent to medical treatment

Last month the Government published a report on how it makes decisions about which vaccines to fund. For a long time, charities and campaigners have been lobbying for this report to be published. It also follows calls for greater transparency about why a vaccine to protect children against Meningitis B was not made more widely available and an 820,000 signature petition calling for all children to be vaccinated following the death of 2-year-old Faye Burdett in 2016, who was not offered the vaccine because she was 'too old'.

A public consultation will run until 21 May 2018.

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This is not the first time vaccinations and whether they are recommended by the Government has been the subject of widespread controversy. It is not that long ago that the MMR vaccine was under the spotlight and despite the fact it was funded and recommended by the Government, many parents chose not to give their children it.

So what happens if a Government recommended vaccine is available, but parents can’t agree on whether their child should have it?

The law places a responsibility on those with parental rights and responsibilities to safeguard and promote their child’s health, development and welfare; and it gives them corresponding rights to fulfil such responsibility, independently of anyone else with parental rights and responsibilities, including in most cases the other parent. A duty is placed on such persons, in reaching any major decision involving a child to take account of the views of that other person, but:

  1. there are no set definitions of what constitutes a major decision (could this include the giving of particular vaccine or not?); and
  2. nothing that dictates that such decisions can only be taken and then implemented with mutual consent of two parents, each of whom have such parental rights and responsibilities.

If two such parents cannot agree, they may find themselves having to ask the court to either prevent or allow a course of action or event to take place, such as the giving of certain medical treatment or indeed a vaccination. If a court is being asked to decide whether or not that should happen, one may need to lead evidence from medical experts; and if the issue in dispute is in relation to a vaccine, whether or not it is recommended by the Government will be a factor that one side asks to be taken into account. However, even between medical experts, opinion can very widely and how well placed is a judge, trained in law not medicine, to make such a decision? They might not be best placed to, even by their own admission, but in the event that parents bring such a dispute before the court, the judge can and will be forced to make a decision.

This article was originally published by Brodies
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