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by Andrew Learmonth
07 September 2021
Comment: Teenage pricks could spark a fight

Comment: Teenage pricks could spark a fight

It seems likely that Scotland will, in the coming days, catch up with France, Spain, and the US and start offering under 16s their first doses of the coronavirus vaccine. 

It’s been a long time coming. 

It was back in June when the Medicines and Healthcare products Regulatory Agency (MHRA) approved the Pfizer jab for 12 to 15-year-olds in Britain. 

However, the Joint Committee on Vaccination and Immunisations (JCVI) – the body responsible for advising the four nations on who should get what and when – has been cagey. 

Despite pressure from the governments of the UK, the advisory body will only go as far as recommending the jabs for 16 and 17-year-olds, and clinically vulnerable younger teens.

Their caution is linked to concerns over a rare side effect called myocarditis – a type of heart inflammation. They say the minimal health benefits of offering universal Covid-19 vaccination “do not outweigh the potential risks.”

But that wariness has exasperated our decision-makers and their advisers, with ministers on both sides of the border now contemplating bypassing the JCVI advice for the first time.

If, as expected, the vaccination programme is expanded, it takes us to the next stage of a public health crisis that has already raised interesting questions about the intersection of law, ethics, and politics.

In particular, the big question here is over consent.

A leaked letter from the NHS in England suggested that most 12 to 15-year-olds would not need their parents’ consent, and should be deemed “Gillick competent to provide own consent” over jabs. 

This refers to a 1985 legal decision that paved the way for someone below the age of consent who is sufficiently mature and has sufficient understanding of what they’re doing to obtain contraception without needing to involve parents.

So, ultimately, if that letter stands up, we could have a vaccination programme for adolescents where, if clinicians are happy the minor understands what they’re doing and the potential consequences, parents don’t need to be involved or even told. 

That’s clearly not without its controversies. It could also possibly even cause problems for the jag providers.

“What happens if a 12-year-old gives consent despite parental concern because they have, say, a heart condition which they might not fully understand, and they have a bad or fatal reaction to the vaccine?” asks Amanda Masson, a partner at Harper Macleod who specialises in family law. 
“The parents may well then take legal action against the local health board, or even school,” she warns. 

A really interesting, though ultimately grim scenario is what happens if the parents disagree. 

This isn’t an abstract question. We’ve already seen huge rows in France where all over 12s will by the end of this month need to show a vaccine certificate to get into a café or a cinema or for travel. 

The French government changed the rules so that adolescents require the approval of just one parent.

Here, if parental consent is required, the decision could end up in the courts.

Any sheriff or judge will be reluctant to make an order unless it is better for the child that the order is made. 

Key to any decision will be the child’s welfare and the child’s own opinion. 

“If asked to make a call on whether or not to vaccinate in any individual case I suspect that the decision-maker would fall in favour of vaccination, given current government messaging,” says Masson. 

“If a young person had a very strong view against being vaccinated then their view would be afforded a higher degree of weight the closer to 16 they are, and in practical terms, no-one can force vaccination of a teenager. 

“There comes a point where practical implementation of almost any parenting decision contrary to the child’s view becomes practically impossible. I suspect the court would also take public policy considerations into account in reaching a decision.” 

This is an important issue, says Masson, whose help and guidance in writing this column has been invaluable. “It strikes at the heart of the extent to which the state’s directions can or should trump parental freedom and the wishes of the child or young person.

Read the most recent article written by Andrew Learmonth - Nicola Sturgeon to update MSPs on state of Covid in Scotland

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