Excluding unvaccinated children

Grolschevik

What might constitute a persuasive argument in law that excluding unvaccinated children from schools and creches represents de facto mandatory vaccination and, as such, might contravene the right to bodily autonomy?

And what might be a counter-argument?

Mr. Incognito

How would excluding a child on health risk contracene a right to bodily autonomy which is the right to not be touched inappropriately.

All rights are limited.

The right to free association can be curtailed in times of emergency for example.

The right of free speech can be curtailed by making hate crime illegal etc.

I think unvaccinated children should be excluded from creches and all child payments should be contingent on vaccinations

is_that_so

Grolschevik wrote: »

What might constitute a persuasive argument in law that excluding unvaccinated children from schools and creches represents de facto mandatory vaccination and, as such, might contravene the right to bodily autonomy?

And what might be a counter-argument?

You don't have any right to spread an infectious disease. Infectious Diseases Regulations 1981 cover this area.

Good summary link from here.

https://www.hse.ie/eng/services/list/5/publichealth/publichealthdepts/id/

ELM327

Mr. Incognito wrote: »

How would excluding a child on health risk contracene a right to bodily autonomy which is the right to not be touched inappropriately.

All rights are limited.

The right to free association can be curtailed in times of emergency for example.

The right of free speech can be curtailed by making hate crime illegal etc.

I think unvaccinated children should be excluded from creches and all child payments should be contingent on vaccinations

I think the greater good should be enough reason to go ahead with both of those measures tbh

Mrs OBumble

Mr. Incognito wrote: »

I think unvaccinated children should be excluded from creches and all child payments should be contingent on vaccinations

You know there are some kids who cannot be vaccinated for medical reasons?

ELM327

Mrs OBumble wrote: »

You know there are some kids who cannot be vaccinated for medical reasons?

I think it's clear that only anti vaxers would be excluded, vs those with genuine medical conditions (and if not it should be)

.......

Mrs OBumble wrote: »

You know there are some kids who cannot be vaccinated for medical reasons?

What kind of medical reasons would a child not be able to be vaccinated against say, measles, mumps, rubella?

dudara

Some people have very weak immune systems and would not be able to tolerate a vaccine. Also, people can have allergic reactions to ingredients in vaccines.

There are valid medical reasons for not taking a vaccine, and they can be easily documented by a doctor.

Mitch Connor

Mr. Incognito wrote: »

excluded from creches and all child payments should be contingent on vaccinations

I'd agree on creche/school - but I don't understand why child payments should be held. What is the argument for it?

I 100% think people who don't vaccinate their kids are absolute dangers (where no proper medical reason exists not to), but still... is it just to punish the parents for a legal choice?

Dytalus

....... wrote: »

What kind of medical reasons would a child not be able to be vaccinated against say, measles, mumps, rubella?

Children who are immunocompromised, via illness (HIV/AIDS) or other factors (cancer treatments like radiotherapy, for example), cannot safely receive most vaccinations.

alroley

In Australia parents can't receive social welfare/benefits if their children are not vaccinated.

.......

Dytalus wrote: »

Children who are immunocompromised, via illness (HIV/AIDS) or other factors (cancer treatments like radiotherapy, for example), cannot safely receive most vaccinations.

They are probably not going to regular creches though?

charlietheminxx

....... wrote: »

They are probably not going to regular creches though?

Most immunocompromised children do. One of my friends would fall into this category (though obviously an adult now) and she contracted mumps while in college. It's awful to see such a resurgence in these illnesses.

Marcusm

....... wrote: »

What kind of medical reasons would a child not be able to be vaccinated against say, measles, mumps, rubella?

The very children who we seek to protect via herd immunosiation; ie those for whom they would be life threatening illnesses. They are a very small cohort and would not be penalised under any mandatory vaccination law.

Grolschevik

The context of my original post was a radio discussion between the doctor whose Tweet led to Simon Harris's statement, and Pat Kenny. Both agreed with each other that excluding unvaccinated children would be constitutionally problematic. I even think one of them used the phrase "not allowed", but I might be misremembering.

I could not see how that could be the case, and thought I must be missing something.

Peregrinus

alroley wrote: »

In Australia parents can't receive social welfare/benefits if their children are not vaccinated.

Australia's not very big on fundamental human rights, though.

Grolschevik wrote: »

What might constitute a persuasive argument in law that excluding unvaccinated children from schools and creches represents de facto mandatory vaccination and, as such, might contravene the right to bodily autonomy?

I don't think the "bodily autonomy" argument is very strong. In the first place, is there a recognised constitional "right to bodily autonomy"? In the second place, me not wanting to hang out with you because I think you present an unacceptable risk of infection does not amount tto "de facto mandatory vaccination". It amounts to you having to confront the social consequences of your decision not to vaccinate.

You might have a slightly stronger argument if kids are excluded from schools, since there are constitutional rights in the field of education. Inconveniently, however, the Constitution starts by recognising the rights of parents to educate their children, and if decisions against vaccination taken by those same parents result in exclusion from schools, I don't think the parents can disclaim all responsiblity for the impact on their child's education.

Your strongest argument would be Article 42.4, which provides that "the state shall provide for free primary education . . . with due regard, however, for the
rights of parents. . .". You;d argue that parents have a right to make vaccination decisions about their children, and the state's duty to provide free primary education must accommodate this right. I think there'd be some mileage in that argument.

Rubberchikken

if you exclude unvaccinated children, what happens when they grow up as unvaccinated adults? do you exclude them too?

if a parent has rights over a minor can that not include choosing not to vaccinate?

Peregrinus

Rubberchikken wrote: »

if you exclude unvaccinated children, what happens when they grow up as unvaccinated adults? do you exclude them too?

Adults are generally excluded from schools and creches, whether or not vaccinated.

Rubberchikken wrote: »

if a parent has rights over a minor can that not include choosing not to vaccinate?

Yes, it can.

But a right not to do X is not a right to be be treated as if you had done X, or be immune from any of the consequences of not doing X. The state can't force you to vaccinate your child, but you can't force the state to pretend your unvaccinated child has in fact been vaccinated.

Victor

Not quite the same, but there is someone with a particularly virulent strain of TB that has been in Peamount Hospital for the last 30-40 years. It has been recognised that the state can detain (not just exclude from school) people who pose a hazard to public health.

Peregrinus wrote: »

Your strongest argument would be Article 42.4, which provides that "the state shall provide for free primary education . . . with due regard, however, for the
rights of parents. . .". You;d argue that parents have a right to make vaccination decisions about their children, and the state's duty to provide free primary education must accommodate this right. I think there'd be some mileage in that argument.

Hmm, put all the vaccinated children in one school? That's a right bottle of poison.

Peregrinus

Victor wrote: »

Hmm, put all the vaccinated children in one school? That's a right bottle of poison.

Well, we're straying into public health rather than constitutional law, but my (not very sophisticated) understanding is that it's concentrations of unvaccinated people that cause the greatest public health risk. One or two unvaccinated children in a school are no signficant risk to the others, since the others have been vaccinated. It's contact between signficant numbers of unvaccinated people that creates epidemics of infection.

Which creates a dilemma. Suppose little Johnny has not been vaccinated against measles. Admitting him to a school in which all the other kids have been vaccinated against measles does not present a significant health risk to the other kids, since they have been vaccinated. So you might argue that the real reason for a rule excluding him is not not to protect the other kids in the school, since they are not at any great risk either way, but to incentivise his parents to have him vaccinated, which should protect him, and which also helps to acheive the wider public health goal of not building up a significant pool of unvaccinated people in the wider community.

And the constitutional argument that you could make againsst that is that other tools are available to the state for encouraging the take-up of vaccination, and they should use those tools rather than a tool which is in itself an infringement on the constitutional right to education.

p15574

Rubberchikken wrote: »

if you exclude unvaccinated children, what happens when they grow up as unvaccinated adults? do you exclude them too?

Probably won't be an issue.

dudara

....... wrote: »

They are probably not going to regular creches though?

They may. Or even if they don’t, they still interact with the outside world.

This is why we need to have hard immunity e.g. that enough of the herd has been vaccinated to prevent disease breaking out. When we reach this level, the less strong, the non-immune are protected

splinter65

Mrs OBumble wrote: »

You know there are some kids who cannot be vaccinated for medical reasons?

That’s easily established though, so not a reason to not go ahead with this legislation.

coylemj

The kids who, for good medical reasons (already outlined above) cannot be vaccinated can be accommodated within a group which has achieved the statistical tipping point known as herd immunity whereby the disease is unable to find enough hosts to infect and spread.

I don't know the percentages and they're probably different for the various vaccines but I believe the % of children who are unable to receive a particular vaccine is well below the level of unvaccinated children which would compromise herd immunity. Provided that every child capable of receiving the vaccine did so.

Gryffindor

While I'm not sure how persuasive it would be in a constitutional challenge, since 1964 there is certainly a recognised unenumerated right to bodily autonomy which extends far beyond the right not to be touched inappropriately (Ryan v AG). As other posters have mentioned though, no rights are absolute and countervailing policy arguments could well justify its limitation.

Due to the courts' generally deferential stance on efforts by the Government to implement policy, I'd be surprised if the bodily autonomy argument won out.