The Government has now published guidance following its earlier announcement that all children aged 12 to 15 years will be offered a single dose of the Pfizer vaccine, as a result of advice from the UK’s Chief Medical Officers. The intention is to roll out the programme as soon as possible with initial invitations possibly being sent as early as next week. This briefing is an early opportunity to consider the guidance and the potential issues that schools may face in the coming weeks as the vaccination programme is deployed.
As we anticipated, guidance on how the programme will be deployed has now been published and school premises will be utilised for the programme in common with other school vaccination programmes operated by the School Age Immunisation Service (SAIS). It is now clear that the school will be responsible for:
- Providing the premises for deployment of the vaccine programme by medical professionals.
- Providing details of the school roll to SAIS
- Sending out consent forms to parents
It has been made very clear by Professor Chris Whitty, the CMO that this is an “offer” of a vaccine and parents will have a choice as to whether their child takes up the offer or not. Further, both he and Nick Gibb, the outgoing schools’ minister, indicated they were of the view that cases where parental choice was overridden would be rare. But what of those problematic cases where a child and parent have different views on the administration of the vaccine? The guidelines that medical professionals apply in such cases are known as the Gillick competency test. These guidelines apply in cases where it is necessary to assess whether a child has the maturity to make their own informed decisions, based on an understanding of the implications of their decisions. The starting point should always be to get parents and child to agree an approach but if that is not possible then professionals need to consider a number of factors, albeit there is no fixed or defined approach.
Factors to take into account include the following:-
- the child's age, maturity and mental capacity
- their understanding of the issue and what it involves - including advantages, disadvantages and potential long-term impact
- their understanding of the risks, implications and consequences that may arise from their decision
- how well they understand any advice or information they have been given
- their understanding of any alternative options, if available
- their ability to explain a rationale around their reasoning and decision making.
Any consent to the vaccine by the child must not be as a result of pressure.
It is now clear that there is no expectation that schools will be involved in the evaluation of Gillick competence of a child. That evaluation will be undertaken by medical practitioners, who are used to applying the guidelines, rather than school staff. Early indications from teaching trade unions expressed concern that school staff should not be involved in this process and guidance has now clarified the approach.
Many schools have already received letters from “concerned parents” regarding the deployment of the vaccine in schools. In short, the correspondence relies upon studies that acknowledge the risks of vaccinating this age group rather than counter studies that accentuate the benefits. The letters echo previous correspondence in relation to the utilisation of masks and testing in schools. To our knowledge, in spite of the threats, no litigation has resulted as a consequence of those highlighted issues.
In this case the ante has been upped somewhat insofar as the threat has gone beyond civil proceedings to a threat of criminal prosecution for assault, in the event that injury occurs as a consequence or potentially also in circumstances where there are questions over the consent of a child in a Gillick competence case.
In order to prove an offence of assault it is necessary for the prosecution to establish until a court is sure that there has been the infliction of unlawful personal force on another person in circumstances where the person responsible intended or was reckless as to the infliction of force. It is highly unlikely that in circumstances where a Gillick competent child has given consent that a court will find that a person has inflicted personal force which is unlawful. Consensual medical intervention is a defence to an allegation of assault as it makes the action lawful. Even in cases where more significant harm results, provided the necessary informed consent has been gained and the Gillick competency guidelines followed, it is difficult to see any circumstances in which the Crown Prosecution Service would form the view either that the action was unlawful or that the Public Interest Test is satisfied such that a prosecution is deemed in the public interest. Further in the event a private prosecution is mounted, that is a prosecution by an individual rather than the CPS, it is highly unlikely that any court will find that in the circumstances the school or any of its employees has acted unlawfully. In fact, the risk is likely to be very low indeed for school employees as they will have no involvement in the process other than to provide facilities for the administration of the vaccine and the administration of the consent forms. As indicated before the Gillick competence assessment will be undertaken by medical practitioners.
In terms of civil liability, the letters of concern are generally somewhat vague about the basis of a claim but presumably it is on the basis that harm is caused as a consequence of alleged negligence. In such circumstances three tests must be satisfied. Is there a duty of care by the school to the pupil? Has the duty been breached? And has the breach caused the harm leading to the claim?
If schools are merely providing facilities, unless any harm was caused as a consequence of the facilities, it is difficult to see what additional duty of care arises in the circumstances. Even if one was to establish a duty, provided the forthcoming Government guidelines are followed it is difficult to foresee circumstances in which a breach will be found on the basis that the reasonable person would be likely to form the view that to follow the guidelines was a reasonable thing to do. In the case of schools, given their lack of involvement in the process, it is also difficult to see how the provision of facilities for administration of the vaccine can lead to a claim that they have contributed to the harm.
The guidance to date on the necessity for and benefits of administering COVID-19 vaccines to 12-15-year-olds has not been consistent and, whatever one’s view of parents who express concern regarding the deployment of the vaccine, one must take into account that in the case of young people the balance between the risks of receiving the vaccine against the benefits is a much finer one than in the case of adults.