Shots, shots, shots… everybody?

Tuesday 23 November, 2021

In August 2021, young people in New Zealand aged between 12 to 15 became eligible to receive the Pfizer COVID-19 vaccine (“vaccine”). In the coming months, it is likely that vaccinations will be made available to 5- to 11-year-old children in New Zealand, considering the vaccine is already approved for this age group by Pfizer. Pfizer are also conducting vaccine trials in children under 5, with the results to be released later this year. Because vaccinations are, or likely will be, approved for almost all children under the age of 16 in New Zealand, what happens if parents or guardians cannot agree about whether their child or young person should be vaccinated?

I cannot agree with other parents or guardians about my child or young person’s vaccination. How can I resolve this dispute?

In New Zealand, children under the age of 12 are not yet eligible to receive the vaccine. Furthermore, once a young person turns 16, they are legally entitled to make their own decisions about vaccination, as if they were an adult[1]. This means that disputes about vaccinations can only currently exist in relation to young people between the ages of 12 and 15.

Parents or guardians disagreeing about whether their child or young person should be vaccinated may find that the decision is taken out of their hands. This is because young people between the ages of 12 and 15 may themselves consent to vaccination - without all their parents or guardians approving it first - if the young person concerned can provide “informed consent”. Essentially, this requires the young person to demonstrate that they have sufficient intelligence and understanding to appreciate the effect and possible implications of the vaccine. The Government has issued a policy about vaccinating 12 to 15 year olds, which can be read here[2]. It suggests that the person administering the vaccine should discuss vaccination with the young person, to ascertain if the young person can provide informed consent. Under the Code of Health and Disability Services Consumers' Rights, all persons, including young people, are presumed to be competent to make an informed choice, unless there are reasonable grounds for believing that they are not competent. In practice, this will likely mean that most eligible young people between the ages of 12 and 15 wanting to be vaccinated will be, even without the consent of a parent or guardian, as they will be presumed competent to make the decision themselves.

If the young person does not arrange vaccination themselves, and the young person’s parents or guardians dispute whether they should be vaccinated, then the issue would need to be referred to mediation, known as Family Dispute Resolution (“FDR”). If FDR cannot resolve the dispute, then an application would need to be made to the Family Court. The Family Court is obliged to consider children and young person’s views and give those views weight commensurate with their age and maturity. The Family Court would also need to have regard to the child or young person’s rights to consent or refuse medical treatment under the United Nations Convention on the Rights of the Child and the New Zealand Bill of Rights Act. Most young people between the ages of 12 to 15 are of sufficient maturity and understanding to express themselves cogently and make an informed choice about the vaccine. Therefore, in most cases, it is unlikely that the Family Court would order vaccination against a young person’s wishes.

Are there any Family Court cases on COVID-19 vaccination disputes?

While we are not aware of any published cases that concern the COVID-19 vaccine, there have been numerous Family Court cases concerning vaccination[3]. A common theme of these cases is that the child or young person’s wishes will be respected, if they are able to provide informed consent. Another common theme is that vaccination will be ordered unless credible medical evidence can be provided showing that the risk of vaccination outweighs the benefit.

The Family Court case of Re SPO[4]bestdemonstrates these themes. In Re SPO, a 15-year-old boy wished to finish a course of MeNZB vaccinations; however, his mother objected. The boy was in the custody of Oranga Tamariki, so Oranga Tamariki made an application to the Family Court to resolve the vaccination dispute. Oranga Tamariki filed evidence that included a signed letter from the boy, in which he stated that he had spoken to a public health nurse about vaccination and understood its effects. The boy also confirmed that he wanted to be vaccinated, and evidence was presented from a GP that there was no medical reason for the boy not to be vaccinated. In comparison, to oppose vaccination, the mother relied on a copy of a Rolling Stones article raising concerns about vaccines. The mother was unsuccessful, as the Family Court found that the boy was able to provide informed consent to be vaccinated, and that no credible medical evidence had been presented to show that the risk of vaccination outweighed the benefit. It is likely that cases involving COVID-19 vaccines will adopt a similar approach.

If the Government extends vaccinations to 5 – 11-year-olds, or children under the age of 5, how will those vaccination disputes be resolved?

If these age groups become eligible, it is likely that vaccination disputes will arise in instances where the child is not mature enough to provide informed consent to vaccination. In these cases, vaccination will likely be ordered by the Family Court unless the opposing parent or guardian can provide credible medical evidence showing that the risk of vaccination outweighs the benefit.

Summary:

While parents and guardians have the right to be consulted and make decisions about vaccinations, this right erodes where the child or young person in question is able to competently able make up their own mind. In this context, parents and guardians of competent young people should think of their “guardianship rights” as “guardianship duties”, so that they provide the young person concerned with time or opportunities to discuss the vaccine and make an informed choice, rather than make a decision for them. In respect of children aged 11 or younger, most will not be mature enough to provide informed consent to vaccination, meaning that the decision will fall to their parents and guardians. Ultimately, children and young people are better off if agreement can be reached without having to involve the Family Court. Our Family Team is experienced in advising and acting for parents on guardianship issues, and can assist with reaching agreement, or applying to the Family Court.