Legal precedent in place to decide juvenile vaccine issues

A LONG–ESTABLISHED legal precedent will determine whether children in Guernsey will be given a Covid-19 vaccine in cases where they disagree with their parents.

Advocate Natasha Newell, from Carey Olsen.
Advocate Natasha Newell, from Carey Olsen.

The Civil Contingencies Authority decided on Tuesday that those aged between 12 and 15 would be offered a single dose of the vaccine.

Medical officer of health Dr Nicola Brink said Health & Social Care had approved the proposal and Public Health was ‘looking at providing the correct information to these groups of individuals’.

Asked whether children in this age group would be deemed competent to decide for themselves whether to have the jab, Dr Brink pointed out that it would be offered through the Covid Vaccination Centre at Beau Sejour, rather than lining children up at school, to give them a chance to discuss it.

‘They’ll be able to come in, have discussions and talk about the pros and cons,’ she said.

‘We always like to work with parents, but we also have something called Gillick competency, where we assess the competency of a child. We see this as a programme that we co-deliver together.’

Gillick competence is already well established in Guernsey law as a way of determining whether a child can be considered to have the capacity to decide for themselves whether to have a medical procedure or treatment.

Natasha Newell, pictured right, an advocate and English barrister at Carey Olsen, said this degree of competence could be considered a high hurdle in the circumstances.

‘Given the complexity of the Covid vaccination issue, many adults would struggle to clearly define their view on it,’ she said. ‘This is a different kettle of fish from the flu vaccine, for example. None of us know the long-term impacts.’

She explained an individual child could, at the same time, be considered Gillick-competent to determine their own fate when it came to being given a flu jab, but not when it came to a Covid vaccination.

‘It has to be done on a case-by-case basis,’ she said.

The assessment could be used, Advocate Newell said, in cases where a child wanted the vaccine, despite parental objection, and also where the child refuses a vaccine their parents want them to have. If the finding is in favour of the child, any parental challenge would have to be via a judicial review.

If a child is not considered competent to make their own decision, parental choice then becomes the determining factor. Medical professionals are required to seek the agreement of all parties and – where a case is complex – the opinion of a colleague.

If two people who have parental consent cannot agree, the status quo would prevail. This would mean, in the case of a vaccination, that it would not be given, unless there was an immediate threat to the child’s life.

‘Like a lot of Guernsey law, it’s not actually written down,’ Advocate Newell said. ‘But it’s used in the UK by medical professionals and therefore here via the guidelines followed by our own medical professionals.’

Children with compromised immune systems have already been offered vaccines via the Bailiwick’s established priority groups for vaccination.

. The UK’s Joint Committee on Vaccination and Immunisation, whose advice the CCA has been following throughout the pandemic, has said that mass vaccination in the 12 to 15 age group is not justified purely on medical grounds, due to the low risk posed to children by the virus. However, the medical officers of health in each region, including Guernsey and Jersey, have decided to proceed after taking into consideration the issue of educational disruption due to outbreaks.

What is Gillick competence?

It stems from a case in the UK High Court, which was appealed to the House of Lords, in 1985, in which Victoria Gillick sought to prevent her daughter receiving contraceptive advice and treatment without her consent. The case led to the establishment of what are called the Fraser guidelines. These advise that a child can receive a treatment against their parents’ wishes, if they have the maturity and mental capacity to understand the health issue and the risk of the treatment and if they understand the advice they have been given and the other options available to them. They must also be able to explain the rationale behind their decision.

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