Anti-vaccination movements, children’s’ rights and private power

We are delighted to welcome back Ntina Tzouvala who is Deputy Co-Convener of Law and Global Justice and a PhD candidate  at Durham Law School. She is currently researching on history and theory of public international law. You can follow her on Twitter @ntinatzouvala

Around a month ago the Wall Street Journal published an article entitled ‘The Anti-Vaccination Epidemic’ , which summarises an ongoing and worrying trend: diseases like mumps, measles and whooping cough are reappearing in the Western world. The reason for this is comeback is the growing anti-vaccination movement both in the US and Europe. Fueled by (dubious) publications that falsely associated certain vaccines (MMR) with autism, and by overemphasising highly exceptional cases of severe side-effects, the participants in anti-vaccination movements refuse to vaccinate their children. Apart from a heavy reliance to conspiracy theories, these movements also rely on the undeniable success the very social practice they oppose: we are no longer afraid of smallpox or rubella precisely thanks to being immunized against them at a very young age. The fact is that historically these diseases claimed the lives of millions of children and if the anti-vaccination movement prevails, they will do so again. The only way for parents to keep their children out of the ‘system’ without seriously endangering them is for them to fail politically: a few free-riders will still be safe given the overall eradication of the diseases due to the overall high rates of vaccination. But if the public campaign of these parents succeeds, then this shield will collapse and it is a matter of time before epidemics of smaller or larger scale return.

What is of interest here are the legal justifications provided by parents for their actions. (Un)surprisingly, there is a long history of civil liberties rhetoric in the UK against compulsory immunisation. After vaccination was made compulsory in 1840 the British society was in unrest and in 1878 a member of the Anti-Compulsory Vaccination League argued:

I. It is the bounden duty of parliament to protect all the rights of man.

  1. By the vaccination acts, which trample upon the right of parents to protect their children from disease, parliament has reversed its function.

III. As parliament, instead of guarding the liberty of the subject, has invaded this liberty by rendering good health a crime, punishable by fine or imprisonment, inflicted on dutiful parents, parliament is deserving of public condemnation.’

Given the general distrust towards governmental intervention at the time and importantly, given that the only conceivable rights at play seemed to be those of the parents, the law was amended in 1898. The amended version arguably introduced the concept of ‘conscientious objector’ in British law, allowing parents who ‘did not believe’ in the effectiveness of immunisation to opt out.

Contemporary protesters rely on the same legal and scientific (in the broadest sense of the word) arguments to justify their choice not to vaccinate their children. This post is not concerned with explaining how science has progressed since then rendering any overall challenge to the practice implausible. What is of our concern here is the modification of the legal background since the end of the 19th century. Two things need to be noted here: first, the classical, liberal conceptualisation of rights as shields against state interference is now complemented -to an extent- by an understanding that state intervention is necessary for the meaningful enjoyment of such rights, especially by vulnerable groups. Further, the conviction that children enjoy rights that are not identifiable with those of their parents has entered the legal equation. In the international realm this conviction is materialised through the Convention of the Rights of the Child (CRC hereafter), an instrument that according to UNICEF changed the way we see children from passive objects of care and charity to human beings with a distinct set of rights.

Sadly, any analysis based on the CRC is not applicable in the US, since the state has signed but not ratified the Convention. Nevertheless, it is applicable almost worldwide, and therefore we need to pay close attention to it. Directly relevant here are the Article 24 on the right to health and the General Comment 15 of the CRC Committee that elaborates the details of the right. Moreover, Article 3 para. 1 stipulating that all decision-making should be guided by the ‘best interests of the child’, Article 12 dictating that children should be provided ‘the opportunity to be heard’ and ‘due weight’ should be given to their opinions and finally, Articles 5 and 14 that guarantee parental rights are significant for this debate.

More specifically, Article 24 stipulates that children are entitled to the enjoyment of the ‘highest attainable standard of health’, they should not be deprived of their right of access to such health care services’, while there are explicit references to preventative health care and utilisation of technology, in order to promote the right to health. Moreover, we are confronted with one of these (rare) circumstances when there is a rather objective basis for judging what is ‘at the best interests of the child’. In principle, pluralistic societies with different and often conflicting understandings of what amounts to ‘good life’ grant parents with a wide margin of appreciation (in the non-Strasbourgian, ordinary sense of the term) in the making of such decisions. However, vaccinations are specific in two interrelated ways. General Comment 15 obliges the states to decide on Article 24- related issues according to ‘evidence-based public health standards and good practices’, setting therefore a rather objective, scientific standard for what is at the best interest of the child. Further, in its commentary on Article 3 the Committee clarifies that ‘best interests’ apply both to individual children and ‘children as a group’. This is of importance, since refusal to vaccinate one’s children is in many aspects dissimilar from refusing, for example, blood transfusion on religious grounds. In the latter case it is the specific child that is endangered (which is bad enough), whereas in the former there are legitimate general public health concerns. Moreover, this practice endangers these vulnerable children who due to genuine medical reasons cannot be vaccinated. Luckily, when immunisation levels are high these children’s health is protected thanks to our ‘herd immunity’. They might not be immune to the disease themselves, but they will probably never face the risk anyway, since everyone else is and therefore it is highly unlikely for them to be infected. Any state policy towards the anti-vaccination movement needs to take into account the rights and best interests of these children as well.

Another legal argument invoked by parents is that compulsory vaccination violates their (and their children’s) right private and family life under Article 8 of the ECHR. This argument does not seem to be legally tenable. In fact, the European Court of Human Rights had the chance to rule on Article 8 and compulsory vaccination in 2012 in Solomakhin v Ukraine. It needs to be stressed that when Solomakhin was subjected to compulsory vaccination he was a full- grown adult. Still, the court found that even though compulsory vaccination evidently interfered with his bodily integrity and therefore fell under Article 8, the interference was justified in a democratic society as it ‘could be said to be justified by the public health considerations and necessity to control the spreading of infectious diseases in the region.’ Arguably, if this is the case when it comes to a 35-year-old man, it is highly unlikely that the ECtHR would find a violation of the parents’ rights when it comes to vaccinating children 1 or 5 years old (these are ages the two rounds of MMR vaccination commonly take place), especially if we take into account the children’s rights under the ECHR and the CRC.

This does not necessarily imply that states are under an obligation to introduce compulsory vaccination for children. Questions of policy efficiency are of direct concern here and each state can make to appropriate choices taking into account the rights and interests of all individuals concerned and , of course, the interests of the society as a whole with a special focus on its more vulnerable members who arguably will suffer disproportionally from a disease outbreak. For example, in the light of the overall circumstances a state might choose to initiate an information campaign rather than resort to criminalisation of parents that refuse to vaccinate their children. Nevertheless, it needs to be stressed that the rights- based rhetoric of the anti-vaccination movement does not seem to take into account the actual international human rights documents and courts decisions. Further, this human rights rhetoric draws from an intellectual and political tradition with a very narrow understanding of human rights and, importantly, a very exclusionary conceptualisation of who is actually the bearer of these rights.

One final note: it is very easy and very appealing to dismiss these movements as manifestations of lunacy and poor education. Nevertheless, this attitude does not explain why and how these movements are fuelled periodically and more specifically now that no major publication (however ill-researched) on the topic has come out. My feeling is that- up to an extent- the revival or appearance of such movements is attributable to an overall distrust towards the state and a trend to conceptualise the private sphere exclusively as one of freedom and, in this case, care and love. Arguably, these sentiments are cultivated by states themselves through their turn to a neoliberal agenda that discredits any conception of public good and prioritises a very narrow understanding of what it means to live in a society, and even to be an individual. Interestingly, children’s rights and children’s welfare more broadly is one of the starkest examples of how less state involvement does not necessarily lead to more freedom. Rather it can well lead to an increase of private power, which being private, and in this case accompanied by love and affection, is not easily identifiable.

Anti-vaccination movements, children’s’ rights and private power

Council of Europe Recommendation on the Political Participation of Persons with Disabilities

The Committee of Ministers of the Council of Europe last week adopted a Recommendation that seeks to increase the participation of persons with disabilities in political and public life at all levels − local, regional, national and international.  The Recommendation is available here.  Between 80 – 100 million persons with disabilities live in the 47 Member States of the Council of Europe.  The Council of Europe noted that persons with disabilities often do not take part in the decision-making process as they face legal, physical, and societal barriers to participating. Through this Recommendation the Committee of Ministers seek to challenge this exclusion. The Recommendation aims to remove barriers and create conditions for active citizenship, without discrimination, for all and in all life settings. The Recommendation stresses that all persons with disabilities are entitled to express their views and should not be deprived of their right to vote or stand for election on the basis of disability.  This is a very progressive statement from the Committee of Ministers and goes some way towards countering the repressive position of the European Commission for Democracy Through Law (the Venice Commission) regarding the eligibility of persons with intellectual disability to stand for election and vote.   The Venice Commission in its“Interpretative Declaration to the Code of Good Practice In Electoral Matters on the Participation of People with Disabilities in Elections” stated:

Continue reading “Council of Europe Recommendation on the Political Participation of Persons with Disabilities”

Council of Europe Recommendation on the Political Participation of Persons with Disabilities

World Mental Health Day

Today in World Mental Health Day – and it provides us in Ireland with a lot to think about in terms of the way in which mental health services are provided and how our mental health laws are constituted.  The key policy document on mental health is entitled “A Vision for Change” and the Expert Group on Mental Health Policy, which was established to monitor its implementation have been very critical to date in their five annual reports on the lack of progress in implementation.  See here.  In its most recent report it was critical of the absence of a recovery ethos within mental health services.  This is a major challenge that has to be addressed as principles of recovery are at the core of the philosophy underpinning “A Vision for Change”.  While there is much to be dismayed about we are at an important crossroads in Ireland in relation to our mental health laws.  The Department of Health is in the process of reviewing of the Mental Health Act 2001, while the Department of Justice is similarily reviewing the Criminal Law (Insanity) Act 2006.  This provides a significant opportunity to rethink our mental health laws in light of the UN Convention on the Rights of Persons with Disabilities (CRPD), which the Government is working towards Continue reading “World Mental Health Day”

World Mental Health Day

Human Rights Organisations Oppose the Forced Sterilisation of Women with Disabilities in France

An alliance of human rights groups has spoken out against the forced sterilisation of women with mental disabilities in France.  See here and here.     Last week the Center for Reproductive Rights, European Disability Forum, Interights, International Disability Alliance and Mental Disability Advocacy Center; submitted written comments to the European Court of Human Rights in the case of Gauer and Others v France (Application no 61521/08).  A copy of the written comments is available here.    Gauer and Others v France is a case involving five women with intellectual disabilities who were forcibly sterilised.  The decision of the European Court of Human Rights will be an important statement on the reproductive rights of persons with disabilities and the positive obligations on the States in safeguarding persons with disabilities against abuse.

The European Court of Human Rights has used the UN Convention on the Rights of Persons with Disabilities (CRPD) as an interpretive aid to the European Convention on Human Rights and it is clear that the ECHR has been edging closer to the philosophy of legal capacity as set out in Article 12 of the CRPD.  In Shtukaturov v Russia the ECtHR stated “…the existence of a mental disorder, even a serious one cannot be the sole reason to justify full incapacitation”.  This was an important statement by the ECtHR acknowledging that there was a lack of proportionality in the legal response to the person’s capacity in that case.  Moreover, the Shtukaturov decision is important in that ECtHR acknowledges that the deprivation of legal capacity constitutes a serious intrusion into a persons right to respect for their private and family life under Article 8 and domestic legislation has to provide “a tailored-made response” in this area.  So this case will provide an invaluable opportunity for the Court to engage with the CRPD and further develop its jurisprudence on the right to legal capacity.  Other human rights that will be engaged under the European Convention on Human Rights include:

  • Article 3 (prohibition of torture)
  • Article 8 (right to respect for private and family life)
  • Article 13 (right to an effective remedy)
  • Article 14 (Prohibition of discrimination)
Human Rights Organisations Oppose the Forced Sterilisation of Women with Disabilities in France

Resourcing Independent Living: Universal Access and Personal Supports

We are delighted to welcome another guest post from Noelin Fox.  Noelin is a Ph.D candidate in the Centre for Disability Law and Policy, NUI Galway.  Her research examines the right to independent living provided for in Article 19 of the UN Convention on the Rights of with Disabilities. Noelin has worked for many years in intellectual disability services’ in Ireland, her previous blog can be seen here.

A proposal by Birmingham City Council to limit the provision of direct support to disabled people with ‘critical’ need only was ruled to be unlawful by the High Court in May this year. The judgment is available here. This was on the basis that the policy failed to give ‘due regard’ to the impact of the proposals on disabled people as required by Section 49A of the Disability Discrimination Act 1995 (as amended in 2005).  Section 49A stipulates that Continue reading “Resourcing Independent Living: Universal Access and Personal Supports”

Resourcing Independent Living: Universal Access and Personal Supports

General Election 2011: The Lifecourse Social Policy Agenda for the Next Government

We are delighted to welcome this post from the Directors of the Lifecourse Institute at National University of Ireland Galway.  The Directors are Professor Pat Dolan Academic Director of the Lifecourse Institute & Director Child & Family Research Centre; Professor Tom Scharf Director of the Irish Centre for Social Gerontology and Professor Gerard Quinn Director of the Centre for Disability Law & Policy. The recently formed Lifecourse Institute at NUI Galway brings together the three research centres with a focus on older people, families & children and persons with disabilities.  Its primary function is to produce research that supports innovative policy reform across the lifecycle that enables citizens to achieve their potential and live fulfilling and productive lives.  
This post is based on their ‘Critical Perspectives’ paper, which is intended to provide a succinct statement of the major policy challenges facing the next Government across the lifecourse.  It is intended as a public service at a critical moment in Continue reading “General Election 2011: The Lifecourse Social Policy Agenda for the Next Government”

General Election 2011: The Lifecourse Social Policy Agenda for the Next Government

Regulation is Vital in Safeguarding Against Abuse of Persons in Their Own Homes

Prime Time last night broadcast footage shot during a four-month investigation of professional carers who provide services in private residential settings.  What was clear from last night’s report was that the professional care provided to persons in their own homes was anything but professional.  The report highlighted the lack of training of carers, abuse of vulnerable persons in their homes and a complete lack of oversight from the Health Services Executive.  It is clear from the Report last night that the law must be changed to ensure that a base of standards are put in place regulating professional carers.  In particular, there is a need to regulate the provision of care to vulnerable persons in their homes.  The Law Reform Commission in their Consultation Paper on Legal Aspects of Carers last year identified the need to regulate this area.  The Commission recommended that the Health Act 2007 be amended to extend the authority of the Health Information and Quality Authority (HIQA) to regulate and monitor the provision of professional care in the home.  The Commission also provisionally recommended Continue reading “Regulation is Vital in Safeguarding Against Abuse of Persons in Their Own Homes”

Regulation is Vital in Safeguarding Against Abuse of Persons in Their Own Homes

Budget 2011: Cuts to Disability Funding

There has been a justified lack of trust amongst the disability community who have been at the sharp end of cuts to funding this past year.  See posts here and here.  As Mary Keogh pointed out persons with disabilities had every reason to fear this budget (see here).  Those fears became a reality when the government announced cuts of in the disability allowance, the carers allowance and the carer’s benefit and constant attendance allowance.  Opposition parties are opposing the Social Welfare Bill on the basis that the cuts to disability funding are Continue reading “Budget 2011: Cuts to Disability Funding”

Budget 2011: Cuts to Disability Funding

Two Important New Reports on Minorities, Housing and Social and Economic Exclusion in Ireland

Two important new reports have been published this month which may be of interest to readers.

Travellers’ Health Matters (available here with an accompanying briefing on Traveller accommodation and planning) links poor halting site accommodation to depression, anxiety, diabetes and kidney problems. Findings on the terrible living conditions at the Carrowbrowne halting site are available here. For further reports on Irish Travellers and government policy, see the website of the Irish Traveller Movement.

One Size Doesn’t Fit All (available here with a press release here) is a FLAC report which ‘critiques the system of direct provision and dispersal as one that serves the needs of bureaucracy rather than the needs and rights of a vulnerable group of people to whom the State has a defined duty of care.’ Media coverage of the report is here , here , here and here. Liam highlighted the issue of direct provision on this blog in SeptemberOctober and November of  last year and it was the subject of two posts in our Immigration and the Politics of Belonging carnival.

We hope to have further analysis of the issues covered in these reports in due course.

Two Important New Reports on Minorities, Housing and Social and Economic Exclusion in Ireland

Ireland cited in Guttmacher Institute report on global abortion trends

guttmacher-smA rather curious survey by the Guttmacher Institute (a pro-availability of abortion non-profit organization) has cited Ireland and Poland (which in 1997 re-instated law outlawing abortion except when mother’s life at risk or she had been raped) as the only developed countries in the world where there is not adequate access to abortion, presumably because it is not legal in those countries. While there seems little purpose in re-igniting a debate that sends Irish people on both sides into fits of apoplectic fury (another referendum may be an inevitability if a future FG/Labour coalition achieves a sizeable majority and can thereby avoid destablisation) , it does signifying how far behind/ahead of the rest of our cohorts in the OECD are in this regard, and for that alone, it is worth noting. The Report itself is briefly mentioned in both the Irish Times and the BBC.

Continue reading “Ireland cited in Guttmacher Institute report on global abortion trends”

Ireland cited in Guttmacher Institute report on global abortion trends