Coronavirus Covid 19: What rights do children and parents have when they consent to be vaccinated?

ANALYSIS

The key to this is a child’s ability to make such a decision, writes Claire Breen for The conversation

With the government’s announcement last week that 12 to 15 year olds can now receive the Pfizer vaccine for Covid-19, New Zealand has joined a growing list of countries expanding their vaccination deployments.

A health ministry survey in June found that 58% of caregivers were likely to allow their children aged 12 to 15 to be vaccinated, up from 55% in May.

The survey also found that the number of parents who decided not to vaccinate their children had increased slightly. The main concerns of parents were the safety of the vaccine in children and its long-term effects.

So while the Pfizer vaccine has received interim approval from Medsafe, the rollout still raises the important question of what New Zealand’s law says about children’s consent to medical treatment.

Who can give consent?

The Child Protection Act provides that a child over 16 can give or refuse consent to medical treatment.

However, this does not mean that not all children under the age of 16 can consent to medical treatment. The key to this is a child’s ability to make such a decision.

There is no defined age at which a person can be considered competent, but the Consumer Rights Code of Health and Disability Services (which derives from the Act on the Commissioner for Health and Disability) provides some guidance.

This stipulates that any person – adult or child – is presumed competent to make such decisions, unless there are reasonable grounds to believe otherwise.

Are children able to consent?

Regarding child protection law, the New Zealand courts’ view follows a UK case in which the House of Lords ruled that a child under 16 was legally competent to consent to an examination medical and treatment – if he had sufficient maturity and intelligence. understand the nature and implications of this treatment.

Likewise, under the New Zealand Code, if a health professional is satisfied that the young person fully understands what the treatment involves, then the young person can consent.

When it comes to consenting to the vaccination, a healthcare professional should make sure the child understands why and why it is necessary. They also need to be convinced that the child understands the risks, benefits and outcomes involved.

Likewise, anyone can refuse medical treatment under New Zealand Bill of Rights Act, including children.

However, the courts have also ruled that this only applies to those who are competent and fully understand what the decision-making entails.

Courts tend to override a child’s views only in serious situations, usually life-threatening.

Respect children’s rights

More generally, vaccination or immunization is part of the general human right to the best possible state of health, which includes the right not to undergo non-consensual medical treatment. This right must be balanced against the State’s obligation to prevent and control disease.

The United Nations Convention on the Rights of the Child contains important provisions regarding 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 child’s right to freely express his views is protected, and the views of the child are also essential in determining what is in their best interests (two principles reflected in the Child Protection Act)

• every child has the right to life, countries must do everything possible to ensure the survival and development of the child, and this should be part of any assessment of what is in the best interests of the child .

These provisions also occupy a special status within the convention as guiding principles. Adherence to these principles can also help prevent violations of other rights, such as the child’s right to health.

Finding the right balance

The convention also seeks to balance the rights and responsibilities of parents in guiding children with their own developmental capacity to make important decisions regarding their health and well-being.

It is therefore essential that children, parents and health workers have adequate guidance on who can give consent and what each person’s rights are.

Concerns about vaccine safety are natural, and access to reliable vaccine information is important for children and their parents. It is especially important to be transparent about the possible side effects – of the vaccine, but also of Covid-19 itself.

Respecting the general right of children to participate in decisions that affect them is the best way to navigate these complex situations.

Claire Breen is Professor of Law at the University of Waikato.