Should older Jamaican children be required to have parental consent to receive the Covid-19 vaccine?

Over the course of the past year and a half, children have been directly and indirectly affected by the pandemic. While fewer children have been infected with COVID-19 compared to adults, it remains clear that children can be infected with the virus, can become sick and can spread the virus to others. Accordingly, it has been recommended that everyone 12 and over should get a COVID-19 vaccine to protect against the virus and the Pfizer vaccine has been authorized for such use. The potential benefits of the vaccine far outweigh the known and potential risks.

With that said, the recent announcement by the Ministry of Health and Wellness (MOHW) that children 12 years and older will be prioritized to receive the Pfizer vaccine is welcomed and the push encouraging parents to take their children to various sites across the island to facilitate the vaccination process is supported. As announced in a series of tweets published by the Ministry, children 12-14 years with underlying illnesses and those 15 years and older, particularly those sitting exams, will be prioritized for vaccination under the National Student Vaccination Programme. In facilitating this process, the Ministry has further communicated that children must be accompanied by a parent with a government issued ID and a copy of the child’s birth certificate. Whilst the reasoning is clear given nature of parental responsibility, the duty of care owed towards our children, and the administrative issues that would be addressed by the presence of a parent, there is nevertheless a concern surrounding the uptake of vaccines among children, particularly in instances where children are interested in being vaccinated but parents have made the decision not to vaccinate them. Based on data coming out of the MOEYI, only 59% of parents are eager, willing, and ready to vaccinate their children, the remaining 41%, suggestively, are resolute in their position not to.

From observations across varying platforms, it seems likely that the very present anti-vaccination sentiment that has been persistent in attempting to sully national vaccination efforts may affect the ability of the Government to successfully vaccinate our children. The inability to achieve its targets will undoubtedly offset the government’s goal of not only affording them a layer of protection against COVID-19 but to resume face to face learning, the absence of which has had a considerably harmful effect on the country’s education sector.

Having said this, the guidelines related to the vaccination of our children need to be expanded to consider this reality by carefully outlining provisions that will allow children 16 and older who want to be vaccinated but do not have parental consent, to be vaccinated irrespective of their parent’s wishes.

Children’s Capacity to Consent

From a legal perspective, this position is clear. Section 2 of the Child Care and Protection Act (CCPA) provides that all actions related to our children shall be regarded in a manner that upholds their best interests as a paramount consideration and the government in determining what is in their best interests must take into account their safety, their physical and emotional needs, the level of their development and whether the child is of sufficient age and maturity so as to be capable of forming their own views and, if so, must ensure that those views are given due weight in accordance with the age and maturity of the child.

Complementary to this is Section 8 of the Law Reform (Age of Majority) Act which provides that where a minor has attained the age of sixteen (16) years his or her consent in respect of any surgical, medical or dental treatment to himself or herself shall be as effective as it would have been if he were of full age and where a minor has, by virtue of the provisions in this section given an effective consent in respect of any such treatment, it shall not be necessary for consent to be obtained from the parent or guardian of that minor in respect of that treatment. In this case, the words “surgical, medical or dental treatment” includes any procedure undertaken for the purposes of diagnosis in respect of said treatment or any procedure ancillary to said treatment. The use of the word medical treatment is arguably read to include the receiving of vaccinations.

It is therefore clear that under Jamaican laws, children 16 years and older may themselves consent to being vaccinated.

Looking at the actions of other countries, such as the UK, the Joint Committee on Vaccinations and Immunizations (JCVI), having recognized the surge in cases among younger age groups, has released a statement advising that all 16- and 17-year-olds will be offered a first dose of the Pfizer vaccine in the coming weeks and will not need their parent’s consent. This determination follows the view that if a child is able to understand the risks and benefits of any medical treatment then they can legally give consent without their parents’ approval. This view is consistent with UK laws which purport that at 16, a young person is presumed to have the capacity to consent.

This position considers that while parents possess the rights of decision-making in particular circumstances, they also possess a responsibility to enable their children to gradually transition into adulthood and as has been recognized, the rights of young people to make decisions about their own lives by themselves at the expense of the views of their parents has become an increasingly important and accepted feature of family life. Adolescence is a period of progressive transition from childhood to adulthood and as experience of life is acquired and intelligence and understanding grows, so will the scope of decision-making which should be left to the minor, for it is only by making decisions that decision-making skills will be acquired. Moreover, it should be regarded that as children acquire capacities, so too are they entitled to an increasing level of responsibility for the regulation of matters affecting them.

Recommended way forward

With that said, this means that the Jamaican legislative framework, within which adolescent access to health care exists, already supports the notion that children 16 years and older should be able to access vaccinations without the need for parental approval or even the strict requirement that parents must accompany them. This notion is particularly important having considered the circumstances where there may be either a clear conflict between what is actually a child’s best interest and what a parent believes is in that child’s best interests and where a child, who is aware of the nature and effects of the virus, appreciates the impact of the pandemic on the society, has done considerable research on the various vaccinations that exist and has formed their own views that they wish to be vaccinated but has encountered resistance from a parent.

Accordingly, there is a collective duty owed towards ensuring that our children are afforded the highest attainable standard of health and given the onslaught of the COVID-19 pandemic and the recent emergence of the Delta variant on Jamaican shores, all possible measures must be taken to ensure their protection especially as we move to inoculate them. The guidance on the vaccination of our children should therefore be revised to consider the nuances explored above and provisions should be made and publicly communicated affirming the Ministry’s commitment that it will facilitate the vaccination of children 16 and older who want to be vaccinated but who do not have parental consent.