Open Access Te Herenga Waka-Victoria University of Wellington
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Immunisation and the law : slippery slope to a healthy society

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posted on 2021-11-22, 12:45 authored by Kerr, Jessica Dorothy

The immunisation of children against communicable diseases is a crucial public health intervention with both individual and collective outcomes. Current New Zealand immunisation policy prioritises parental autonomy, but has not succeeded in actively targeting all of the factors that prevent parents from ever making informed immunisation decisions. Consequently, our coverage rates are unsatisfactory both in absolute (by reference to the goal of 'population immunity') and relative terms. In order to have a realistic chance of meeting the Ministry of Health's optimistic coverage targets, it is necessary to consider whether New Zealand's comparatively weak immunisation law could be strengthened to eliminate the phenomenon of 'passive' non-immunisation without fatally undermining the decision-making capacity of parents. If this is not possible, then either the goal of population immunity or the prioritisation of individual choice must be abandoned. Of the three options for law reform explored by this paper, two are thought to be unworkable because they would, or should, be perceived as failing to achieve the delicate balance between individual freedom and public good. These are, first, a universal mandatory immunisation requirement, which may be justifiable in principle but would almost certainly encounter prohibitive public opposition; and, secondly, a targeted law that would require beneficiaries to make active decisions about immunisation, and (it is submitted) represents an unwarranted misuse of the vulnerability of those dependent upon taxpayer support. The reform option recommended is more moderate and more equitable. Creating a legal presumption in favour of immunisation, at the point of entry into primary school, would shift New Zealand from its current paradigm of 'informed consent' - whereby parents must actively opt in to immunisation - to a United States-style model that required parents who wished to opt out of immunisation to undergo a 'informed refusal' process. The stringency of this process would depend upon the degree to which policy-makers were satisfied that only those parents whose deeply held convictions prevented them from being open to persuasion were attempting to invoke it. Unless the size of the anti-immunisation lobby significantly increases, it is suggested that an informed refusal requirement could successfully tackle the problem of passive non-immunisation, thereby discharging the State's responsibility to further the interest of all New Zealanders in achieving and maintaining population immunity levels.


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Te Herenga Waka—Victoria University of Wellington

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Te Herenga Waka—Victoria University of Wellington

Victoria University of Wellington Item Type

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Victoria University of Wellington School

School of Law