Should childhood MMR vaccination be compulsory? Rights, duties and the public interest

Abstract

When children and young people lack the capacity to make decisions about their care and treatment, decisions have to be made on their behalf based on an assessment of their welfare or interests. In law, parents, or others with the relevant parental responsibility, are ordinarily regarded as the appropriate decision-makers. One way of framing this is to say that parents have certain decision-making rights with respect to their children. Such rights, however, are not generally regarded as absolute, rather they can be seen as secondary to and limited by the duties that parents have with regard to their children, duties to promote their welfare. It is against these parental duties that children could, at least in theory if not in practice, claim a right to certain kinds of protection. The legal rights of parents here, as opposed to the rights of the children, can be thought of as rights that secure for parents the freedom from interference necessary to fulfill the underlying duty.

Keywords: :

• MMR
• childhood
• immunity
• population
• protection
• vaccination

Decisions about what is conducive to a particular child’s welfare are inevitably permissible of a degree, possibly a considerable degree, of leeway. Currently, for example, decisions about whether or not a particular child is to be immunized against measles, mumps and rubella in the UK fall within the scope of parental choice. There is no legal obligation on parents to vaccinate their children, nor are there any burdens placed on parents—or their unvaccinated children—where they decide not to vaccinate. By contrast, in the US, vaccination is mandatory before children enroll in public school, unless they have obtained a relevant exemption.

The scare associated with the publication of an article in The Lancet in 1998¹ that made now discredited claims of a link between the combined MMR vaccine and autism led to a decline in vaccination rates such that, in certain parts of the UK, uptake fell below the levels required to prevent outbreaks of measles.² Given the potential harms resulting from contracting measles during childhood, the question of whether the decision to vaccinate should, at least in the majority of cases, be moved outside the scope of parental discretion and made mandatory has become live. Therefore, should there be a legal duty to vaccinate children against MMR?

We can divide the question into three: first should parents be under a general (moral) duty to vaccinate their children; second, should this obligation be enforced; and third, if it should be enforced, how should we go about it?

Individual Rights and the Public Good

There are at least two moral dimensions to a decision as to whether to vaccinate a child: one is individual and straightforwardly relates to the interests of the particular child to be vaccinated—the welfare decision. The second dimension relates to what is sometimes called the public good, specifically in this case the interests of frequently unidentified third parties who may contract the disease. Given that the diseases in question are communicable, and given that if the immunized population falls beneath a certain critical level, epidemics can arise, a decision about whether to vaccinate an individual child will also have an impact, albeit a highly attenuated one, on this wider public interest. Two moral duties therefore arise: one to make an appropriate welfare decision in relation to the child to be vaccinated; the second to consider the impact of the decision on others.

The welfare decision

The majority of children who are vaccinated against measles, mumps and rubella are too young to give meaningful consent to the intervention and a decision must be made on their behalf, ordinarily by someone with parental responsibility. Decisions in relation to individuals lacking the capacity to make them are ordinarily governed by a consideration of ‘best interests’ or whether it is likely to provide an overall benefit to the individual. Although best interest decisions relating to adults will ordinarily involve a consideration of prior wishes and values, such considerations are not relevant to very young children. When it comes to a decision about whether or not to vaccinate a specific child, the primary welfare decision will therefore involve assessing the balance of benefits and harms of the intervention to the child in question.

There is a considerable literature on the benefits and harms of vaccination that is not practical to reprise here.³ The ordinary benefit of vaccination is immunity against the disease in question. In the case of dangerous childhood diseases such as measles, this confers a very significant potential benefit. Arguably it is the success of earlier immunization strategies, and the forgetting of the impact of diseases such as measles, combined with sensationalist media coverage, that has resulted in poorly-informed welfare decisions by some parents. Not everyone can be immunized—it is contraindicated for neonates and some children with suppressed immune systems—and not every immunization is completely successful, but in ordinary circumstances the benefits are clear.

Harms of vaccination can include the pain of the injection and the resulting soreness at site. In addition, although rarely, there can be allergic reactions and even, in extreme cases, death. Overall, however, in relation to MMR, the benefits will ordinarily considerably outweigh the harms and it follows that there is a strong prima facie duty on parents to ensure their children are vaccinated at the earliest realistic opportunity against measles, mumps and rubella.

The welfare decision and population immunity

Population immunity is achieved where sufficient individuals within any given population are immunized against a disease so that epidemics are effectively prevented due to the low-levels of person-to-person transmission. Where population immunity has been established, arguably the moral balance in the welfare decision shifts slightly. As the likelihood of the child being exposed to the disease is significantly lower, the possible harms of vaccination hang more heavily in the balance. Given that the harms associated with vaccination are usually trivial, and children may still be exposed to diseases carried by people moving into the population from areas where such immunity does not exist, vaccination still looks prudential. Levels of population immunity are likely to be relevant, however, in relation to the potential use of compulsion, which is discussed later on. A decision by a parent not to vaccinate a child because of background population immunity invokes the problem of ‘free-riding’. In this context, free-riding involves individuals accepting the benefits of other people’s action while choosing to forego the small associated risk or disbenefit. Arguably, if an individual recognizes that he benefits from some collective action then he has some obligation to accept his share of the burdens.⁴

Harm to others

The free-riding problem raises the issue of the ethics of collective action. The communicability of infectious diseases is a strong reminder that our interests as human beings are frequently interconnected—that health can have a shared dimension.⁵ While a decision in relation to a particular medical intervention will often begin and end with the individual patient, this is not, as we have seen, exclusively the case in relation to vaccination. If I refuse to be vaccinated I may become a disease vector and may therefore put others at risk of avoidable harm. Likewise, if I refuse to vaccinate my child he may transmit the disease to others. Given that we have established the existence of a strong prima facie moral duty on parents to ensure that their children are vaccinated for the interests of those children, the potential contribution of vaccination to protecting others—frequently unknown others—from potential harms acts to strengthen that primary duty.

Should Vaccination Against Measles, Mumps and Rubella be Enforced?

In ordinary circumstances there is a strong moral duty on parents to ensure their children are appropriately vaccinated against these childhood diseases. The use of compulsion to bring about desirable public goods can nevertheless be problematic in liberal democracies like our own, largely because liberal states are to a greater or lesser extent organized around various defenses of individual liberty. In liberal states, that is, liberty is a primary good and state restrictions of individual liberty require strong justification. Although liberalism is a very broad political church, many liberals draw a distinction between actions by competent adults likely to result in harms only to themselves, and actions that may also entail harms for others.⁶ While intervening in the former is unlikely to be warranted, it is widely accepted that restrictions of liberty can be justified in the face of harms to others.⁷ As the direct harms of a failure to have a child vaccinated fall on the child, not on the decision-maker, it follows that for liberal regimes compulsion may in some circumstances be warranted; the question is, in what circumstances? It may be argued that in liberal regimes, the family unit deserves special protection from state interference, and that the rights of parents to make decisions with regard to their children have special status. Given that a hue and cry is seldom raised where parents are prosecuted for abusing or neglecting their children, and given that, as discussed above, parental decision-making rights are properly grounded in the duty to promote the welfare of their children, the argument is not, on the face of it, an overwhelming one.

Before a decision to mandate vaccination by some means can be made, a number of factors need to be taken into account. The first is that the disease has to present a threat of a certain significant seriousness—that the harms are not trivial. The second is that the desired good cannot be achieved in a way less restrictive of liberties. In my view, for example, where population immunity has been achieved, the case for compulsion falls away as the potential harms have been largely removed—free-riding is seldom on its own justification for compulsion. In addition, the likely consequences of compulsion need to be taken into consideration; although we have been dealing largely with questions of rights and duties, the consequences of any state action in the real world need to be assessed. Compulsion can lead to resistance, to gaming and to disengagement with public health services and if compulsion is to be introduced, there has to be a reasonable likelihood of it achieving its objectives.

Finally, there are many ways in which states can influence the decisions of their citizens, and the imposition of legal sanction is among the most extreme. Given the interests at stake other options, such as education campaigns and the use of incentives should be considered before more draconian measures are contemplated. Having said this, should an epidemic of a dangerous disease establish itself, in the absence of appropriate take-up, the case for compulsory vaccination of children at risk would be a strong one.

Disclosure of Potential Conflicts of Interest

No potential conflicts of interest were disclosed.