Parental Refusal of Childhood Vaccines and Medical Neglect Laws

Efthimios Parasidis, JD; MBioethics; Douglas J. Opel, MD, MPH

Disclosures

Am J Public Health. 2017;107(1):68-71. 

In This Article

Abstract and Introduction

Abstract

Objectives. To examine the relation of vaccine refusal and medical neglect under child welfare laws.

Methods. We used the Westlaw legal database to search court opinions from 1905 to 2016 and identified cases in which vaccine refusal was the sole or a primary reason in a neglect proceeding. We also delineated if religious or philosophical exemptions from required school immunizations were available at the time of adjudication.

Results. Our search yielded 9 cases from 5 states. Most courts (7 of 9) considered vaccine refusal to constitute neglect. In the 4 cases decided in jurisdictions that permitted religious exemptions, courts either found that vaccine refusal did not constitute neglect or considered it neglect only in the absence of a sincere religious objection to vaccination.

Conclusions. Some states have a legal precedent for considering parental vaccine refusal as medical neglect, but this is based on a small number of cases. Each state should clarify whether, under its laws, vaccine refusal constitutes medical neglect.

Introduction

Parental refusal of childhood vaccines is a contentious issue in pediatrics and public health. With increasing numbers of parents exempting their child from required school-entry vaccines[1] and few evidence-based interventions to address vaccine hesitancy,[2] pediatric providers are struggling with how to respond to parental vaccine refusal.[3] One strategy recently promoted is to treat vaccine refusal as neglect and report parents to child protective services (CPS) or another comparable agency.[4]

Although child welfare laws vary by state, the legal concept of medical neglect has a common denominator. New York's law is paradigmatic: a neglected child is one whose "condition has been impaired or is in imminent danger of becoming impaired" because the parent has failed "to exercise a minimum degree of care in supplying the child with adequate" health care.[5] Medical neglect is a subset of child neglect, which refers to parental acts of omission in the care of their child not exclusive to health care. Both child neglect and child abuse (parental acts of commission that result in harm to the child) constitute child maltreatment.

Pediatric providers (and other mandatory reporters) have an obligation to report suspected child abuse or neglect to CPS. CPS must determine whether a report requires an investigation and, if so, whether investigation findings meet the relevant legal standards. A finding of medical neglect can trigger court action that may result in the temporary or permanent loss of custody or parental decision-making authority.

Although the application of medical neglect to parental vaccine refusal has some salience—a child is exposed to some potential risk of harm by a parental act of omission—it is not clear whether it is salient to CPS or meets the legal threshold for neglect. For instance, some maintain that CPS screens out reports solely based on failure to vaccinate,[6] and Michigan has an explicit policy to this effect.[7] A few states codify that vaccine refusal regardless of reason,[8] or solely for sincere religious beliefs,[9] does not constitute medical neglect. Furthermore, even if vaccine refusal amounts to medical neglect, it is not clear that this finding requires state intervention. Ross and Aspinwall[10] contend that there should be a distinction between medical neglect and state intervention, arguing that vaccine refusal constitutes the former but does not warrant the latter. Chervenak et al.[4] argue that the purpose of reporting parents who refuse childhood vaccines to CPS for neglect is not to provoke "highly intrusive measures," such as loss of custody, but to "engage [CPS] in further efforts to persuade the parents."(p308) Simply invoking CPS, however, may undermine parents' views of providers as a trusted vaccine resource and important influence on their vaccine decision-making. Indeed, the American Academy of Pediatrics states that it "does not support the stringent application of medical neglect laws when children do not receive recommended immunizations."[11]

A key gap in our understanding of the applicability of medical neglect to vaccine refusal is an analysis of court opinions. This is especially important because most states do not define medical neglect in their statutes.[12] We quantified and categorized adjudicated neglect proceedings for vaccine refusal and describe their features and outcomes.

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