When children of vaccine-hesitant parents want to be immunised

Amanda Lyons

8/04/2019 2:23:52 PM

newsGP speaks with medico-legal expert Dr Sara Bird about under-18-year-olds who want vaccinations despite their parents’ wishes.

Young patient talks about vaccination with doctor
Dr Sara Bird navigates issues of consent in situations when patients under 18 want vaccinations against their parents' wishes.

As growing vaccine hesitancy leads to increasing outbreaks of diseases such as measles within Australia and throughout the world, there are increasing conversations among health professionals about how to tackle science scepticism and calm potential fears about such public health measures.
Against this backdrop, there is also another issue emerging – an increasing number of children and young people who would like to receive vaccinations, despite the fact that their parents are vaccine-hesitant.
newsGP spoke with Dr Sara Bird, manager of Medico-Legal and Advisory Services at MDA National, about the options available to young people facing this particular conundrum, and its surrounding issues of decision-making capacity and consent.
At what age is a person legally able to make a decision to be vaccinated on their own behalf? 
The age at which a person becomes an ‘adult’ in Australia is 18, which is the ‘legal age of consent’. By that age, all patients are presumed to have capacity to consent to their own medical treatment, such as vaccination. Consent for the medical treatment of patients under 18 years of age is generally provided by parents; however, as discussed below, there are circumstances where patients who are under 18 years of age can legally consent to being vaccinated despite their parents’ objection.          

It’s also worth noting that either parent of a child can provide consent to their child’s medical treatment, unless there are court orders to the contrary.

We often receive medico-legal calls from GPs seeking advice in a situation where one parent is a vaccination objector and the other parent would like to have their child vaccinated. These are complex situations and GPs can obtain advice about any specific case from their medical defence organisation.

If a person is below the legal age of consent and their parents are vaccination objectors, do they have any recourse if they still want to be vaccinated?
There are circumstances in which patients under the age of 18 years can consent to their own medical treatment.
In order to do so, the child or young person must have a ‘sufficient understanding and intelligence to enable him or her to fully understand what is proposed’. This is often referred to as ‘Gillick competence’ or the ‘mature minor’.
If a child or young person is Gillick competent/a mature minor, they can consent to their own vaccination, even if their parents object to the child or young person being vaccinated.
In certain situations, an application can also be made to the courts for an order for a child to be vaccinated.
Do the rules on this vary between states and territories?
The concept of Gillick competency/mature minor applies in every Australian state and territory as part of the ‘common law’.
There is also specific legislation in New South Wales and South Australia that relates to the medical treatment of children.
In SA the Consent to Medical Treatment and Palliative Care Act 1995 outlines the legal requirements for obtaining consent by medical practitioners. The Act states that a child 16 years and older can consent to their own medical treatment as validly as if an adult, therefore these patients in SA can consent to their own vaccination.
Additionally, a child under the age of 16 years can consent to medical procedures in SA if:

  • the medical practitioner is of the opinion that the patient is capable of understanding the nature, consequences and risks of the treatment and the treatment is in the best interests of the health and wellbeing of the child

  • that opinion is corroborated in writing by at least one other medical practitioner who has personally examined the child before the treatment is commenced.

In NSW, the Minors (Property and Contracts) Act 1970 provides some guidance regarding the medical and dental treatment of children and young people.
Section 49 of this Act states that a medical practitioner who provides treatment with the consent of a child aged 14 years or older will have a defence to any action for assault or battery. This Act does not assist a medical practitioner in a situation where there is a conflict between a child and their parent, and a parent can still potentially override a child’s consent to treatment if the patient is not Gillick competent/mature minor.
What kind of advice should a GP give to a young person in this situation? Are they able to provide any advice at all?
Yes, once a young person is Gillick competent/mature minor, the GP can have a discussion with the patient – and their parent – about vaccination.
Similarly once the patient is 18 years or older, it’s also worth discussing the benefits and importance of being vaccinated with the patient.

Anti-vaccination Children’s and young person’s health Consent Immunisation Medico-legal Vaccination

newsGP weekly poll What is your chief concern with role substitution?

newsGP weekly poll What is your chief concern with role substitution?



Login to comment

Dr Horst Paul Herb   9/04/2019 7:40:24 AM

There are situation in life and medical practice where I don't really care what the law says - a minor requesting a potentially life saving immunisation that was denied to the child by the parents wilful ignorance or indoctrination is one of those situations.

While in this case the law appears supportive to a degree, my ethics would dictate to provide the requested vaccination (if for a disease with high risk and well established vaccination safety) even if the law would say no.