12 October 2018

Alternatives to Physician Dismissal of Vaccine Refusers

Despite robust evidence that routine immunization is safe and effective in averting a range of vaccine-preventable diseases and related complications, some parents refuse some or all vaccines for their children. Indeed, vaccine refusals have increased in the last decade; short of refusals, parents are increasingly delaying vaccines for their children, or are seeking alternative immunization schedules.[1] Given the challenges that vaccine refusers may present for physicians, some clinicians simply dismiss refusers (and their families) from their practice.[2] While dismissal data is not readily available for most jurisdictions, dismissal of patients by physicians is a growing phenomenon which the American Academy of Pediatrics seems to have recently endorsed.[1] Kathryn Edwards, Director of the Vanderbilt Vaccine Research Program, has defended the move as follows:

A number of pediatricians feel so strongly that if they [patients and their physician] don’t agree on vaccines, which are so basic to the delivery of care and have made such a big difference in children’s lives, how will they agree on a number of other things they’ll need to discuss?”[4]

However, it is important to recall that both parents and physicians have legal responsibilities when it comes to treatment decisions respecting children.

The starting point, of course, is that patients can refuse medical treatment, regardless of the harm that might come to them.  Similarly, in the absence of conflict between them, parents can refuse vaccines for their children, and the state will not normally interfere.[5] The law generally assumes that parents making healthcare decisions for their children will act in the children’s best interests. If conflict arises, and court direction as to the lawfulness of the treatment is requested, then a best interests analysis will be undertaken by the court, and a decision imposed.[6] In the UK vaccination cases heard to date – which rely on expert evidence to variable degrees – courts have consistently permitted the vaccinations to be administered.[7] Given the proven track record of vaccination, and the many salutary public health outcomes of broad vaccination, a parent ought to have a very high threshold to meet in making a case that routine vaccination is not in the child’s best interests.

For their part, physicians owe duties to individual patients and to the broader public, and failures to properly meet those duties can lead to liability. Under tort law, physicians can be held liable for the provision of information, advice, or treatment that fails to meet the accepted standard, and that causes foreseeable harm to someone in close enough proximity. For a patient to make an informed choice about vaccination, good information must be provided in comprehensible formats; both content and presentation need to be tailored to fit the parent’s/patient’s needs and capabilities, and it should not be presented in an adversarial manner.[8]

Physicians also have responsibilities – and can face sanctions for their breach – under their professional regulations and codes of conduct.[9] Most pertinent for present purposes, the GMC’s Good Medical Practice (2013) states:

62.         You should end a professional relationship with a patient only when the breakdown of trust between you and the patient means you cannot provide good clinical care to the patient.[9]

While this instruction might seem rather vague, and opens the possibility of dismissal for a wide range of reasons, the GMC has expanded in its guidance, Ending your Professional Relationship with a Patient (2013), stating:

3.            In rare circumstances, the trust between you and a patient may break down, for example, if the patient has: been violent, threatening or abusive to you or a colleague; stolen from you or the premises; persistently acted inconsiderately or unreasonably; made a sexual advance to you.[10]

The guidance is clear that dismissal will be rare and should only be undertaken in the most extreme cases. Moreover, in adopting this ‘nuclear’ option, physicians must not discriminate against patients by allowing personal views to affect treatment decisions.[11] If physicians base their dismissal on a conscientious objection to treating those who refuse to follow advice or to sufficiently provide for the health of their children, then they must explain to patients their objection.[12] However, given the nature of Article 52, it is not clear that this ground for dismissal is open to the physician, and it is a ground that, in any event, ought to be clearly and strongly circumscribed in availability.[13]

Parenthetically, the Canadian Medical Protective Association (CMPA) has offered professional advice with respect to dismissal in the vaccine context; it summarizes the physician’s legal responsibilities as: (1) obtaining appropriate consent to vaccinate; (2) documenting any refusal; and (3) refraining from dismissing refusers.[14] It further emphasises that:

Physicians should make every effort to continue to care for patients in the existing doctor-patient relationship in accordance with current standards of care.[14]

Given this legal and regulatory landscape, there is significant uncertainty around the scope to justifiably dismiss vaccine refusers (and their family). An alternative to dismissal, and one that better meets the physician’s broader patient and public health responsibilities, is to contact child protection agencies, or make applications to the court for an order with respect to the lawfulness of the intervention. While this may effectively end the doctor-patient relationship, it has the benefit of ensuring that the child will at least (most likely) get vaccinated.

Ultimately, while vaccine refusers can be frustrating for physicians to counsel in the surgery, it is important to avoid overly strong or strident messaging, which is often perceived as attacks on beliefs, making it unlikely that the refuser will hear the message. Strategies for preserving the doctor-patient relationship – which at least offers the possibility that the parent might be led to a vaccine-accepting stance – include the following:

·        Accept: Accept and embrace the parent refuser, no matter their decision; make them know their opinions are valued and they are being heard; this builds trust.

·        Acknowledge: Acknowledge that the refuser has good intentions and affirming that both the parent and the physician want the child/patient to be safe, healthy, and happy can be very powerful.

·        Actively Listen: Never assume or guess why the parent is refusing vaccines. Instead, through dialogue, elicit underlying vaccine concerns. Listening to the parent’s/patient’s responses is key.

·        Avoid Confrontation: Minimize confrontational approaches, adversarial stances, and overtly pressurized tactics. Do not emphasize or repeat ‘myths’ as this may reinforce the myth in the refuser’s mind.

·        Advise: Remember that physicians are (trusted) advisors. Thus, patients should be advised not only of the personal benefits of vaccination, but also the public health issues implicated, including the full range of risks and responsibilities.

·        Annotate: Document in the chart the refusal (or reasons for hesitancy) and that the risks and responsibilities have been reviewed.

While theoretically possible, patient dismissal for vaccine refusal should not be adopted lightly. Dismissal (of a family) for vaccine refusal has a complex array of professional, ethical, legal, and public health considerations.[15] It is in neither the best interests of the child patient nor the community to dismiss vaccine refusers. The most powerful tool for combatting vaccine refusal is a good doctor-patient relationship, the maintenance of which is at the heart of the physician’s legal and ethical responsibilities.

[1] K Edwards, J Hackell, et al. ‘Countering Vaccine Hesitancy’ (2016) 138 Pediatrics e20162146.
[2] O Yaqub, S Castle-Clarke et al., ‘Attitudes to Vaccination: A Critical Review’ (2014) 112 Social Science & Medicine 1-11
[3] C Hough-Telford, D Kimberlin et al., ‘Vaccine Delays, Refusals, and Patient Dismissals: A Survey of Pediatricians’ (2016) 138 Pediatrics e20162127.
[4] T Haelle, ‘AAP speaks out on dismissal of vaccine-refusing patients, vaccine hesitancy’, Pediatric News, 30 August 2016, at https://www.mdedge.com/pediatricnews/article/112056/vaccines/aap-speaks-out-dismissal-vaccine-refusing-patients-vaccine.
[5] B (A Child: Immunisation) [2018] EWFC 56 (Fam). See also BMA, Parental Responsibility (2006); Medical protection Association, Parental Responsibility (2012).
[6] Re C and F (Children) [2003] EWHC 1376 (Fam).
[7] LCC v A, B, C & D (Minors by their Children’s Guardian) K,S [2011] EWHC 4033 (Fam); F v F [2013] EWHC 2683 (Fam); Re M and N (Parental Responsibility: Immunisations) [2016] EWFC 69 (Fam); London Borough of Barnet v SL [2017] EWHC 125(Fam); B (A Child: Immunisation) [2018] EWFC 56 (Fam).
[8] Montgomery v Lanarkshire Health Board [2015] UKSC 11.
[9] GMC, Good Medical Practice (2013).
[10] GMC, Ending your Professional Relationship with a Patient (2013).
[11] GMC, Good Medical Practice (2013), Article 59.
[12] GMC, Good Medical Practice (2013), Article 52.
[13] S Harmon, ‘Abortion and Conscientious Objection: Doogan–A Missed Opportunity for an Instructive Rights-Based Analysis’ (2016) 16 Medical Law International 143-173.
[14] CMPA, How to Address Vaccine Hesitancy and Refusal by Patients or their Legal Guardians (2017).

[15] For more, see N MacDonald, S Harmon, et al., ‘Is physician dismissal of vaccine refusers an acceptable practice in Canada? A 2018 overview’ (2018) Paediatrics & Child Health, at https://academic.oup.com/pch/advance-article/doi/10.1093/pch/pxy116/5112977.

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