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Anti-vax dodge a dubious legal ploy

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Doctors are being urged not to sign a form being circulated by anti-vaccination campaigners attempting to circumvent new ‘No Jab, No Pay’ laws.

The AMA’s senior legal advisor John Alati said the form, which asks doctors to acknowledge the ‘involuntary consent’ of a parent to the vaccination of their children, used unusual, confusing and misleading wording, and was of dubious legal status.

“This is not a Government-issued form, and there is no legal obligation whatsoever on a doctor to sign it, or even consider it,” Mr Alati said. “It is likely to be meaningless in the legal sense.”

The form has been circulated among anti-vaccination groups ahead of the 2016 school year following Federal Government welfare changes aimed at denying certain welfare payments to parents who refuse to vaccinate their child.

Under the No Jab, No Pay laws, from 1 January this year parents of children whose vaccination is not up-to-date will not be eligible for the Family Tax Benefit Part A end-of-year supplement, or for Child Care Benefit and Child Care Rebate payments. The only exemption will be for children who cannot be vaccinated for medical reasons.

The new laws are aimed at penalising parents who claim a conscientious objection to vaccination, and to provide an incentive for parents who have neglected their child’s vaccination to bring it up-to-date.

The new laws were introduced amid mounting concern that vaccination rates in some areas were slipping to dangerously low levels, increasing the risk of a sustained outbreak of potentially deadly diseases such as measles.

The Australian Childhood Immunisation Register shows there has been a sharp increase in the proportion of parents registering a conscientious objection to the vaccination of their child, from just 0.23 per cent in late 1999 to 1.77 per cent by the end of 2014.

In all, around a fifth of all young children who are not fully immunised are that way because of the conscientious objection of their parents.

The form being circulated by anti-vaccination groups, headed “Acknowledgement of involuntary consent to vaccination”, is intended to circumvent the No Jab, No Pay laws and allow conscientious objectors to receive Government benefits without allowing the vaccination of their children.

But Mr Alati said the dubious nature of the document made it highly unlikely it would be effective in achieving its goal.

He said the very claim of ‘involuntary consent’ in the form’s title was muddled.

“[Consent] may be grudging or doubtful, but if it is given by a person with capacity, apprised of relevant facts, it is consent,” Mr Alati said. “If it is not voluntary, it is presumably not consent.”

In the form, the doctor is asked to sign a statement that “consent provided by (name of parent) is not given ‘voluntarily in the absence of undue pressure, coercion or manipulation’, and hence that, according to Section 2.1.3 Valid Consent of the Australian Immunisation Handbook 10th edition, the consent is not legally valid. Given the absence of valid consent, I am/am not willing to proceed with the vaccination of (name of child).”

Mr Alati said the wording of the acknowledgment was “confusing, to say the least”.

But he warned that although the form was likely to be legally meaningless, its wording was concerning.

He said the fact that it did not include a statement that the doctor had outlined the risks and benefits of vaccination may be used as evidence that the patient was not properly informed of the implications of not being immunised.

And he said the wording of the line “I am/am not willing to proceed with the vaccination of…”, created the false impression that the choice of whether or not to proceed with the vaccination lay with the doctor, not the parent.

Mr Alati said where there was no medical reason for exemption, the doctor’s job was to outline the relevant facts about immunisation and to provide vaccination where consent was given. Where it was withheld, “the doctor should not perform the procedure as it might constitute trespass to the person”.

The AMA legal expert advised doctors presented with the form not to sign it.

“Given the unusual, confusing and misleading wording of the form and its dubious legal status, we do not recommend that any doctor sign it,” he said. “Doctors should explain to the parent or carer that it is their choice whether to proceed with the vaccination, based on what they have been told, and note the situation on the patient’s health record.”

He said any doctor considering signing the form should “carefully weigh up the potential risks of doing so”.

Adrian Rollins