Analysis – Law professor Claire Breen explains what rights children and parents have in the Covid-19 vaccination process.
With the government’s announcement last week that children ages 12-15 can now receive the Pfizer vaccine for COVID-19, New Zealand has joined a growing list of countries expanding their vaccination implementations.
A Health Ministry survey in June found that 58% of caregivers would likely allow their 12-15-year-old children to be vaccinated, up from 55% in May.
The survey also found that the number of parents who had decided not to vaccinate their children had increased slightly. The main concerns of the parents were the safety of the vaccine in children and its long-term effects.
So while Medsafe has tentatively approved the Pfizer vaccine, the launch still raises the important question of what New Zealand law says about children’s consent to medical treatment.
Who can give consent?
The Child Care Act states that a child over the age of 16 can give or refuse consent to receive medical treatment.
However, this does not mean that all children under the age of 16 cannot consent to medical treatment. The key to this is how competent a child is at making such a decision.
There is no set age at which a person can be considered competent, but the Health and Disability Services Consumer Rights Code (which originates from the Health and Disability Commissioner Act) provides some guidelines.
This establishes that everyone, adults or children, is presumed competent to make such decisions, unless there are reasonable grounds to think otherwise.
Are children competent to consent?
When it comes to the Child Care Act, the opinion of the New Zealand courts follows a British case in which the House of Lords decided that a child under the age of 16 was legally competent to consent to an examination and medical treatment, if he was of sufficient maturity and intelligence. understand the nature and implications of such treatment.
Similarly, according to the New Zealand code, if a healthcare professional is convinced that the young person fully understands what the treatment entails, then the young person can consent.
When it comes to consenting to vaccination, a healthcare professional must be satisfied that the child understands why it is necessary and the reasons for it. They must also be satisfied that the child understands the risks, benefits, and outcomes involved.
Similarly, everyone can refuse medical treatment under the New Zealand Rights Act, including children.
However, the courts have also decided that this applies only to those who are competent and who fully understand what it takes to make the decision.
The courts tend to override the views of the child only in serious, usually life-threatening situations.
Respecting children’s rights
More generally, vaccination or immunization is part of the general human right to the highest attainable standard of health, which includes the right not to receive non-consensual medical treatment. This right must be balanced with the state’s obligation to prevent and control disease.
The United Nations Convention on the Rights of the Child contains important provisions on consent to medical treatment, including:
- The best interests of the child must be a primary consideration in all decisions and in the resolution of conflicts between parents and health workers.
- The right of the child to freely express their views is protected, and the views of the child are also essential to determine what is in the best interest of the child (two principles reflected in the Child Care Act)
- Every child has the right to life, countries must do everything possible to ensure the survival and development of the child, and this must be part of any assessment of what is in the best interest of the child.
- Article four
These provisions also occupy a special status within the convention as guiding principles. Adhering to these principles can also help prevent violations of other rights, such as the child’s right to health.
Strike a balance
The convention also seeks to balance the rights and responsibilities of parents by guiding children with their own developing capacity to make important decisions about their health and well-being.
Therefore, it is essential that children, parents and health workers have adequate guidance on who can give consent and what rights everyone has.
Concerns about vaccination safety are natural, and access to reliable vaccine information is important to children and their parents. It is particularly important to be transparent about the possible side effects, of the vaccine, but also of the COVID-19 itself.
Respecting the general right of children to participate in making decisions that affect them is the best way to navigate these complex situations.
* Claire Breen is a professor of law at the University of Waikato.
Disclosure: Clair Breen does not work, consult, own stock, or receive funds from any company or organization that benefits from this article, and has disclosed no relevant affiliations beyond her academic appointment.