Local Government analysis: Vaccination levels among school children are dropping throughout Europe, with the EU government calling it one of the main risks to public health. With neighbouring countries like Italy and the US making vaccinations compulsory for children wishing to attend state school, should the UK do the same? Karen May, associate at Bindmans, discusses the risk of low vaccination levels in the UK, and recommend investing in education programmes for children and parents.

According to the Health Secretary, the government is ‘looking very seriously’ at making vaccinations compulsory for state school pupils and has taken advice on how such a law could work. How would this be implemented and enforced? How effective do you think it would be?

Compulsory vaccination for state school pupils would be a contentious decision as opinion is deeply polarised on the issue of childhood vaccinations. The two sides of the vaccine debate feel very strongly about the issue—the anti-vaccine community believe there is a connection between vaccinations and autism. However, those in favour of childhood vaccination tend to accept that links between vaccination and the onset of autism and other developmental disorders have since been disproved by further scientific research.

The Health Secretary appears to be prepared to consider a legal framework that could give schools the power to adopt strict policies on student vaccination as a pre-requisite of school admission. This could be an attractive prospect for schools that are under pressure to increase levels of attendance—fewer illnesses equals better attendance. Conversely, schools may find parents and carers within the anti-vaccine community withdrawing their children from schools in order to avoid such policies.

Further, there are implications under the Human Rights Act 1998, with mandatory vaccination leading to potential claims under Article 8 of the European Convention on Human Rights. Inevitably, there are tensions between the right to respect for private and family life and an argument that compulsory vaccination of school children constitutes legitimate interference by a public body for the protection of public health—two apparently contradictory positions within this article.

A legal framework for compulsory vaccination could result in more case law about disputes in this area. Most case law currently comes from the family courts and the focus is on what is in the child’s best interests—with decisions akin to those made in relation to medical interventions such as blood transfusions, as was ruled in Cardiff and Vale University Health Board v T (A Minor) [2019] EWHC 1671 (Fam), [2019] All ER (D) 46 (Jul). More specifically relating to vaccinations, in the recent case Re B (A Child: Immunisation) [2018] EWFC 56, [2018] All ER (D) 11 (Sep), a mother applied for a specific issue order to allow her five-year-old child to be immunised, against the father’s wishes. The court granted the specific order that permitted the mother to immunise her five-year-old child.

What are the main benefits and challenges to introducing compulsory vaccinations in the UK?

An obvious benefit of compulsory vaccination would be lowering rates of infection in the population and the maintenance of ‘herd immunity’, which occurs at 95% vaccination rate (the
current average MMR uptake is at 94.5%). Mandatory vaccination could create a win-win effect of lowering disease infection rates and increasing school attendance rates, as discussed earlier.

However, there would be strong resistance from some parents and carers, which could risk further alienation of the anti-vaccine population. Further, it could also lead to resistance to
vaccination by older, secondary-age children who could well have Gillick competence and be in a position to make their own decision on vaccination.

School places that are contingent on vaccination would inevitably lead to parents within the antivaccine community withdrawing their children from the mainstream school system, electing to home educate in order to avoid vaccinating children against their wishes. There could also be vulnerable families who object to vaccination and fall out of the system altogether when then losing a school place. Children of these families might be left without any education at all. When Italy recently introduced mandatory vaccination programmes, there were mass protests by parents. Parents and carers with children aged between six and 16 must prove they have completed the mandatory course of vaccinations to avoid risk of being fined up to €500 for noncompliance. Despite this opposition, vaccination uptake rates are now reportedly approaching 95% in Italy, from a rate of 80%.

On 12 September 2019, at the Global Vaccination Summit, the European Commission and World Health Organization unveiled a manifesto and ten actions towards vaccination for all in response to what the Commission had called ‘unprecedented outbreaks of vaccinepreventable diseases due to insufficient vaccination coverage rates’. Would compulsory vaccinations help with this issue? Would any of the ten actions be more effective?

In the UK, one of the principle reasons for falling vaccination rates is distrust in the safety of childhood vaccinations. MMR vaccination rates have been in decline with the resultant effect of quadrupling the incidence of measles in England between 2017 and 2018. This effect has been primarily caused by the publication of controversial research that claimed a link between the MMR vaccination and the incidence of autism and developmental disorders in childhood. This research was subsequently proved to be unscientific, however the effect on vaccination uptake persists.

Doctors in the UK are of the opinion that making vaccinations compulsory would exacerbate uptake. In light of the World Health Organization’s ‘Ten Actions Towards Vaccination for All’ action number ten, which aims to ‘tackle the root-causes of vaccine hesitancy, increasing confidence in vaccination, as well as designing and implementing evidence-based interventions’ could prove to be a more apposite strategy. A programme aimed at educating parents, carers and children of the scientific basis for the necessity of vaccination and concrete reasons why vaccine are now considered safe may be a more effective way of tackling uptake.

In the US, all 50 states mandate vaccination as a condition of entry into school. How effective would you say this approach has been? How would it differ in the UK and why, if implemented?

In June 2015, a school immunisation mandate came into force in California, which meant that the only way to send a non-vaccinated child to school in the state is by way of medical exemption. Faced with declining immunisation rates, California removed the ‘personal belief exemption’, legislation that had an immediate impact on parents who had previously relied on this defence to send their unimmunised children to school.

Five lawsuits have been brought against the state and all of them have been rejected by the trial courts. Extreme factual claims were made, such as in Buck v Smith Case No 2:16-cv-05111-GHK-MRW, where the plaintiffs argued against the scientific evidence, claiming that vaccines do not provide immunity. This argument was rejected by the court. Similar claims under a ‘personal belief exemption’ would give the parents and carers in the anti-vaccine community the opportunity to object to a mandate, however this kind of exemption might be considered deleterious.

In the US, there is strong jurisprudence which has upheld vaccine mandates. However, this is not the case in the UK, where there is little case law related to vaccination and parents and carers are currently free to choose whether to vaccinate their children. Challenges to a vaccination mandate may prove more successful than they have been in the US, where the notion of individual liberty in constitutional law is tempered by regard for the common good; in this case the right to choose not to vaccinate your child versus public health concerns.

In your opinion, do you see vaccinations being made mandatory in the UK in the future?

With public opinion deeply divided on this matter, it is difficult to see the government pressing ahead with such legislation. Counterintuitively, doctors in the UK do not support mandatory vaccination, as they believe it would have a negative effect on an anti-vaccine community already in conflict with the medical community.

Rather than attempting to compel parents and carers to vaccinate their children by law, money might be better spent in a nationwide education and pro-vaccine programme, that focuses on dissemination of scientific reasons why vaccines are safe and explaining why the science that lead to misinformation was flawed and has been proven invalid. Focussing on scientific reasoning rather than backing already distrustful parents and carers into a corner may have the effect of creating a sea change in the anti-vaccine community.

Karen May would like to thank Louise Plumstead, paralegal at Bindmans, for her valued contribution to this article.

Interviewed by Samantha Gilbert.

This article was first published by LexisNexis.