Contributed by Alanna Crouse
In 1998, Andrew Wakefield published a scientific paper in the highly prestigious journal The Lancet proclaiming a connection between autism and the measles, mumps, and rubella (MMR) vaccine. It was later discovered that Wakefield’s study not only exemplified bad science but was outright fraudulent. An extensive investigation revealed that Wakefield altered the data to make it fit his claim and that his research was funded by lawyers who were representing parents involved in a lawsuit against vaccine manufacturers. Together, these findings shook the scientific community and led The Lancet to retract the paper. Unfortunately, it was too late, as the anti-vaccination movement had already begun.
Contrary to Wakefield’s claim, vaccines are one of the great marvels of the medical world. Prior to their discovery, infectious diseases were the leading cause of death worldwide. After they came into use in Canada, death by infectious disease fell to 5% of all deaths across the country. Accordingly, cases of measles, mumps, rubella, and diphtheria all dropped by 99%, while polio was eradicated altogether. Thus, in a matter of decades, we put to rest some of the most prominent causes of death in the world.
Despite the drastic improvement in public health and two decades’ worth of evidence establishing the safety of vaccines, Wakefield’s unscientific and unethical publication has emboldened a public health crisis that remains in full effect today. A Canadian study in 2010 revealed that 65% of women and 72% of men either believed the MMR vaccine was unsafe, or they were unsure whether or not it caused autism. This attitude has manifested in what organizations like the Public Health Agency of Canada and the Canadian Paediatric Society have deemed “suboptimal” coverage rates of immunization, and subsequently, a rise in measles outbreaks since 2011.
Given the serious and widespread impact of the anti-vaccination movement, it’s no surprise that legislators and academics alike have begun to ask if and how the law can provide a solution to the rising threat. Two potential solutions include enacting legislation, and the law of extra-contractual obligations.
One route to increasing vaccination rates is to create legislation mandating immunization. In Canada, immunization is only required for children who attend public school, and this requirement is only present in some provinces. Since such legislation is left up to the provinces, approaches to childhood immunization vary across the country. Ontario and New Brunswick are the only provinces requiring proof of immunization for children to attend public school. In British Columbia parents are required to report whether their children have been vaccinated. The Immunization of School Pupils Act (Ontario) and the New Brunswick Education Act both provide that students are prohibited from school if they fail to provide proof of immunization, with Ontario going further by making non-compliance punishable by a $1,000 fine.
A public awareness campaign by the government of British Columbia, encouraging parents to vaccinate their children. || (Source: Flickr // Province of British Columbia)
Although such legislation encourages immunization, it does little to quell the anti-vaccination movement. Until recently, both Acts provided two exceptions to the mandatory immunization rule: medical exemptions wherein students cannot receive vaccinations for health reasons, and “reasons of conscience or religious belief”. In New Brunswick, a written and signed statement by a parent has been sufficient to exempt children from vaccinations. The same applies in Ontario, with the additional requirement that parents complete an immunization education session. The effect of these exceptions is that “anti-vaxxer” parents encounter little resistance. Therefore, fewer children are immunized with the growth of the anti-vaccination movement, and ultimately, the risk of outbreaks increases.
In recognition of this possibility, the government of New Brunswick recently introduced legislative amendments that make medical exemptions the only exception for public school students. Going further, the government is also considering mandatory immunization for teachers, school bus drivers, and other school staff. The result of such broadening of the scope of immunization legislation is twofold. First, it reduces the chance of spreading disease. Second, it opens the door to more radical conversations about mandating vaccines to the wider population – a step that would help ensure that infectious diseases of the past stay in the past.
Despite the health benefits of mandatory vaccinations, the accompanying legal challenges raise concerns about a legislative approach. Clearly, mandating vaccinations is an affront to personal and bodily autonomy, both of which are protected by the Canadian Charter of Rights and Freedoms. Protection with respect to our bodies is directly provided by section 7, which guarantees life, liberty, and security of the person. More indirectly, freedom of conscience and religion (s. 2(a)), and freedom of thought, belief, opinion and expression (s. 2(b)) help protect our personal choices from government interference. Thus, a Charter challenge to immunization legislation could be well founded on any one of these sections.
It’s important to note that Charter rights can legally be infringed depending on the circumstances. As set out in section 1 of the Charter, Charter rights and freedoms can be limited when it’s reasonable and demonstrably justified to do so. However, as of now, there is no sweeping mandatory vaccination legislation in Canada and as such, we don’t know whether the infringements associated with mandating vaccinations would be found justifiable in court. We do know, however, that such legislation would likely elicit public outcry. Taken together, the constitutional uncertainty and the near guarantee of public disapproval encourages exploring other pathways.
As an alternative to legislation, several writers have suggested turning to the law of extra-contractual obligations (ECO) to combat the consequences of the anti-vaccination movement. ECO encompasses civil liability and as such, this approach would allow individuals who contract an infectious disease that is preventable by vaccination to sue the person who chose not to be vaccinated and passed the infection on to them.
A representation of a spherical-shaped, measles virus particle, studded with glycoprotein tubercles. || (Source: Public Health Image Library // Centers for Disease Control and Prevention)
Generally speaking, ECO liability requires that (1) one party committed a fault, (2) the other party was injured, and (3) the fault caused the injury. Suing for non-vaccination would be like suing for any other negligent behaviour that caused harm. The plaintiff would need to establish that they contracted a vaccine preventable disease, that the other party was not vaccinated, and that it was indeed the other party who transmitted the infection to them.
The benefit of an ECO approach is that it maintains decisional autonomy. Individuals can choose not to vaccinate, but when that choice causes harm, compensation must follow. As such, ECO sidesteps the Charter challenges and public outcry that would likely follow a legislative approach.
Of course, it’s not that simple. UC Hastings Professor of Law Dorit Rubinstein Reiss has tackled two obstacles presented by an ECO response to anti-vaccination. First, a fault is when a person fails to behave how a reasonable person would have in the given circumstances. Therefore, it must be established that not vaccinating is unreasonable. The second challenge is that Canadian law recognizes a duty to act reasonably but not a duty to act. In other words, Canadian law doesn’t punish a failure to act, but once you choose to act, you must do so reasonably. To the former concern, Rubinstein Reiss argues that statistics, modern knowledge, and the fact that most people vaccinate suggests that the reasonable person would vaccinate. To the latter, Rubinstein Reiss asserts that not vaccinating is not a failure to act but rather a deliberate decision. It is routine for children to be vaccinated during early life check-ups. Therefore, a parent not vaccinating their child goes beyond inaction to active refusal.
Although Rubinstein Reiss makes compelling arguments, at least one substantial drawback remains: ECO is reactionary. Surely the threat of being sued may encourage some who would otherwise not vaccinate to do so, but this won’t persuade all “anti-vaxxers.” Even if it did, building up precedence requires that for non-vaccination to be brought under the umbrella of negligence, someone will have to first contract a preventable infectious disease and bring their case to court. Thus, while an ECO approach would be advantageous, it’s by no means a perfect solution.
The scary yet scientifically proven fact is that the anti-vaccination movement has led to the re-emergence of dangerous diseases that we long thought were conquered. As it stands now, Canada has few legal measures in place to protect us and future generations from more outbreaks or even full on pandemics. However, change might be coming. Between new legislation and rethinking old tricks of the legal trade, the law has the potential to help the scientific and medical communities get our immunization rates back on track. Of course, law and science won’t be able to do it alone. A change in public opinion, including addressing the ableist rhetoric emerging from the anti-vaccination movement, will be needed to fully circumvent this public health crisis.
Alanna Crouse is a Junior Online Editor of the McGill Journal of Law and Health. Alanna completed a Bachelor of Science at Queen’s University and subsequently earned a Master’s in Human Genetics at McGill University. Alanna’s Master’s work formed part of an international initiative, The Salmonella Syst-OMICS project, which sought to identify genetic determinants of Salmonella virulence, drive technological advances in food safety practices, and inform policies surrounding food safety. In addition to her work in science, Alanna has been involved in such initiatives as the Law Needs Feminism Because National Executive, Pro Bono Students Canada, and the Sexual Assault Centre of the McGill Student’s Society. Alanna’s current interests include bioethics, health law, equality rights, and making science accessible.