February 5, 2015 6:18 AM

Vaccine denial: Should irresponsible decision making carry legal consequences?

What if a mother decided not to vaccinate her daughter for measles, based on rumors that the vaccine causes autism, and her daughter gets the disease at the age of 4 and passes it to a 1-year-old, who is too young for the vaccine, at her day care center. And what if that baby dies? That’s the sad scenario, more or less, of a Season 10 episode of Law & Order: Special Victims Unit. And it’s the hypothetical case study in a provocative paper in the Journal of Law, Medicine and Ethics that explores whether there’s a case for holding people legally accountable for the damage they cause by not vaccinating their children. “One can make a legitimate, state-sanctioned choice not to vaccinate,” the bioethicist Arthur L. Caplan and his co-authors write, “but that does not protect the person making that choice against the consequences of that choice for others.” Since epidemiologists today can reliably determine the source of a viral infection, the authors argue, a parent who decides not to vaccinate his kid and thus endangers another child is clearly at fault and could be charged with criminally negligent homicide or sued for damages.

It’s an ethical/moral question worth pondering: Could (and should) a parent be prosecuted for refusing to vaccinate a child? The Law & Order case is hypothetical, of course…but it’s also not out of the realm of possibility, either.

If you believe as I do that life is all about choices and consequences, the choice to not vaccinate a child might carry significant consequences. In same cases those consequences could be long-term, perhaps even deadly. What then? If a child dies from measles, for instance, and the disease is traced to being exposed to an unvaccinated child (measles can be contagious four days before the onset of symptoms), does that parent bear any legal liability? Can (and should) that parent be held legally responsible for that child’s death. If the answer is yes, manslaughter is an easy argument to make.

Of course, the anti-vaccine community is incensed that anyone would even raise the possibility that they should be held responsible in the event a child dies from exposure to another, unvaccinated, child. The reaction to Caplan’s article was swift and furious in its righteous indignation.

“This article is industry propaganda at its worst,” one commenter declared. Another wrote: “Caplan would have familiar company in fascist Germany.” The blog eventually shut down the comments for violations of the site’s policies against “abusive and defamatory language” and the sharing of personal information.

The raging self-righteousness of the anti-vaccine movement aside: Caplan and his co-authors are right. Parents who refuse to allow their children to be vaccinated for reasons of personal belief…or any other reason…pose a clear and present danger to the public health. Willfully engaging in actions (or lack of same) that imperil the public should be viewed as a criminal offense, in the same way that driving the wrong way on a freeway would be.

The anti-vaccine community may refuse to assume any responsibility for the consequences of their decisions, but that doesn’t mean we collectively can’t impose consequences on them. Vaccination is a reasonable and prudent step that can prevent the transmission of dangerous childhood diseases. Failure to avail oneself of that reasonable and prudent step should come with legal consequences if that decision leads to causing injury to others.

Unvaccinated children threaten the herd. Take the San Diego measles outbreak of 2008. After unknowingly contracting the disease on a trip to Switzerland, an unvaccinated 7-year-old boy infected 11 other unvaccinated kids, according to the Centers for Disease Control and Prevention. The majority of the cases occurred in kids whose parents had requested personal belief exemptions (or PBEs) through the state of California, one of 17 states to allow them. But three of the infected were either too young or medically unable to be vaccinated. And overall, 48 children too young to be vaccinated were quarantined, at an average cost to the family of $775 per child. The CDC noted that all 11 cases were “linked epidemiologically” to the 7-year-old boy and that the outbreak response cost the public sector $10,376 per case.

In other words, a parent’s irresponsible, self-interested decision caused a ripple effect that not only cost society a good deal of money, it resulted in the infection of 11 other children. If you decided to drive while impaired and caused an accident resulting in injuries to others, you’d expect to be charged with DUI…and deservedly so. Yet a parent who refuses to allow their child to be vaccinated bears no responsibility when that child infects others before their diseases manifests symptoms? What if one of those children had died?

I don’t know this to be true, but I’d hazard a guess that these irresponsible parents was sued; all 11 families wanted to (justifiably) wanting to extract their pound of flesh wouldn’t be a surprise. Beyond civil culpability, though, I believe there’s a case to be made that a decision to refuse vaccination resulting in infecting other children should result in criminal charges. What the parent did was fail to take reasonable and prudent action that could have prevented infection. That seems at the very least to be the textbook definition of willful negligence.

‘Course, I’m not an attorney, nor do I play one on television….

Dorit Rubinstein Reiss, a professor of law at UC Hastings College of the Law and author of the blog Before Vaccines, argues in support of Caplan and his co-authors that if you fail to take reasonable precautions to prevent your child from transmitting a deadly virus to another child, you should bear the cost of that risk. If the government doesn’t impose liability, it is giving anti-vaxxer parents a free pass for posing a danger.

Deciding not to hold parents responsible for their decision to not allow their children to be vaccinated amounts to giving a free pass to them for the resulting havoc should one of their children infect others. It means that society will not hold parents accountable for the damage caused by their irresponsibility, nor will society attempt to recoup money spent fighting an outbreak traced back to their child. Again, if this isn’t willful negligence, I don’t know what would be. How a parent in this situation would expect to not be held accountable defies rational understanding.

Decisions have consequences, and sometimes those consequences require the involvement of our judicial system. This is one of those times.

Our children deserve better.

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This page contains a single entry by Jack Cluth published on February 5, 2015 6:18 AM.

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