What are the consent rules for the COVID-19 vaccination?
In order to receive a medical test, examination, or treatment (such as a vaccine), consent must be given. In order for consent to be valid, it must be:
- Given voluntarily
- Informed – i.e. the person must have sufficient information to make the decision to consent to treatment
- Given by a person with capacity – i.e. the person making the decision must be able to understand the information and any implications and make an informed decision.
These rules apply to patients who are aged 16 years or over. As such, 16 and 17-year-olds are free to make their own decisions regarding their medical treatment, except in exceptional circumstances, such as if they lack the mental capacity to make such a choice. As a result, vaccine refusal is entirely their choice, and no matter why parents refuse vaccines, the child can still accept it.
Below the age of 16, a child may be able to make a decision on their own medical treatment if they have sufficient understanding and intelligence – this is referred to as ‘Gillick competence’ and was established in the case of Gillick v West Norfolk and Wisbech Area Health Authority  UKHL 7.
For younger children and those without ‘Gillick competence’, consent must be given by those with parental responsibility. If the mother and father of a child are married or in a civil partnership, both automatically have parental responsibility. If they are not married or in a civil partnership, only the mother has automatic parental responsibility. There are several scenarios under which the father can then gain parental responsibility, including by getting married or entering into a civil partnership with the mother or by entering into a parental responsibility agreement with the mother. In some cases, it may be that the father is named as the person with primary responsibility by way of a child arrangement order.
In cases whereby both parents are female, where the child was born following fertility treatment, it is the mother who carried the child who has parental responsibility. In this case, the second female parent has automatic parental responsibility if she was the mother’s same-sex spouse or civil partner at the time of the fertility treatment and consented to the treatment. Section 2(1A) of the Children Act 1989 states:
“Where a child has a parent by virtue of section 43 of the Human Fertilisation and Embryology Act 2008 and is not a person to whom section 1(3) of the Family Law Reform Act 1987 applies—
(a)the mother shall have parental responsibility for the child;
(b)the other parent shall have parental responsibility for the child if she has acquired it (and has not ceased to have it) in accordance with the provisions of this Act.”
What happens if one person with parental responsibility does not consent to their child receiving a vaccination?
Medical professionals in the UK follow the ‘Green Book’ when it comes to administering vaccines in the UK. The Green Book provides the most up to date information on vaccines and vaccination procedures. This advises those in the medical profession to take the following action when it comes to vaccination consent for children:
- At 16 years of age a young person is presumed in law to have the capacity to consent, so young people aged 16 or 17 years should consent to their own medical treatment - where someone aged 16 or 17 years consents to vaccination, a parent cannot override that consent and have no say on vaccine refusal (i.e. assuming they are Gillick competent).
- For infants and young children not competent to give or withhold consent, consent can be given by a person with parental responsibility, provided that person is capable of consenting to the immunisation in question and is able to communicate their decision. Therefore, if one or more parents refuse to vaccinate a child, the vaccination will not take place.
- Although the consent of 1 person with parental responsibility is usually sufficient (see Section 2(7) of the Children Act 1989), if 1 parent agrees to immunisation but the other disagrees, the immunisation should not be carried out unless both parents can agree to immunisation or there is a specific court approval that the immunisation is in the best interests of the child.
In essence, this means that if one parent wishes their child to have a vaccine but the other does not, then the matter would need to be referred to the court to make a decision in accordance with section 8 of the Children Act 1989. There are many reasons why parents refuse vaccines, ranging from past experiences and health concerns to misinformation.
Final words on Vaccine Refusal
If you have parental legal responsibility for your child and you disagree on whether they should have a vaccination (e.g. a COVID-19 vaccine) with their other parent, it is advisable to speak to a family law Solicitor who can advise on how best to find an agreement (e.g. through Alternative Dispute Resolution methods such as mediation and negotiation), or apply for a specific issue order to the court, before any medical action is taken.
Guillaumes LLP Solicitors is a full-service law firm based in Weybridge, Surrey. We have a highly experienced family law team who can assist you with all matters relating to parental responsibility and medical consent. To make an appointment, please call us on 01932 840 111. Get in touch with us today to find out more about how we can support you when parents refuse to vaccinate a child.