here is another write up about the legal implications
https://www.canlii.org/en/commentar...QkAGU8pAELcASgFEAMioBqAQQByAYRW1SYAEbRS2ONWpA
Physician Dismissal of Vaccine Refusers: A Legal and Ethical Analysis Shawn HE Harmon, David E Faour & Noni E MacDonald*
While vaccines represent one of the most effective health interventions of the twentieth-century, most vaccine-suppressed infectious diseases are merely contained within a defined geographical area for as long as preventative measures can interrupt effective transmission. A difficulty faced by public health authorities is that, once outbreaks become rare, parents of minor children who are meant to commence their scheduled vaccines may question whether vaccination is necessary. This hesitancy can be compound- ed, or transformed into vaccine refusal, by social circles and vaccine-negative social media campaigns. As a result, some parents refuse some or all vaccines for their chil- dren. Indeed, vaccine hesitancy and refusal have increased in the last decade.
Some physicians have responded by dismissing refusers and their families from their prac- tice. While dismissal data is not readily available for most jurisdictions, dismissal of patients is a serious and growing concern.
As such, this article offers an analysis of the legal and ethical implications of physician dis- missal of patients for vaccine refusal, focus- ing on Canada, but drawing on evidence and authorities from the United Kingdom and the United States where appropriate.
It concludes that, while physician dismissal of vaccine re- fusers is occasionally supportable, it is gener- ally ethically and legally problematic. It closes with suggestions for physicians for managing vaccine refusal in the clinical setting.
Rights to access and to refuse treatment Summary:
Individual autonomy is the foundation of clinical care, and the
right to choose between offered medical treatments, or to refuse a treatment, has been robustly upheld in Canadian law. While there is a right – as an extension of the right to self-determination – to choose among the core medical treatments offered through the health care system, t
here is no right to demand a treatment that is outside good medical practice, that is viewed by the treating physician as futile, or that is not covered by the provincial insurance system. 38 In addition to these constraints, the Nova Scotia Court of Appeal has also acknowledged that health care is delivered in the context of a cap system whereby, with limited funds, the introduction of new programs can impact the amounts available for existing ones. 39 The Court held that Nova Scotia’s decision not to cover in vitro fertilization was justifiable on the basis that the procedures in question, having regard to costs, limited success rates, and risks, did not rank sufficiently high to warrant payment for them. 40 More recently, in Flora v Ontario Health Insurance Plan 41 , the Ontario Court of Appeal held that the province had no obligation to reimburse a patient under its health plan who paid out-of-pocket for a successful, lifesaving liver transplant outside of Canada after Ontario physicians determined he did not meet the local criteria for the procedure. 42 In short, any positive right to access health care is limited. 43 In contrast to their limited recognition of positive health care rights in Canada,
courts have long and explicitly upheld the right of patients to refuse medical interventions. Refusal cannot be overridden, even if the treatment is deemed to be in the patient’s interests or refusal is ill-advised. 44 This was clearly established as a common law right in Hopp v Lepp 45 , and Reibl v Hughes 46 . It has been reaffirmed many times since, 47 perhaps most forcefully in AC v Manitoba, wherein Justice Abella, for the majority, held that “[t]he legal environment for adults making medical treatment decisions … demonstrates the tenacious relevance in our legal system of the principle that competent individuals are – and should be – free to make decisions about their bodily integrity.” 48 This common law right has been codified in consent-specific statutes in multiple jurisdictions 49 and is constitutionally supported by
section 7 of the
Charter, which guarantees the right to life, liberty, and security of the per-son. 50
The Supreme Court of Canada has suggested that the right to refuse treatment is accompanied by a corresponding right to know the risks of foregoing treatment. In Hollis v Dow Corning Corp, Justice La Forest stated that “every individual has a right to know what risks are involved in undergoing or foregoing medical treatment and a concomitant right to make meaningful decisions based on a full understanding of those risks.” 51 The question of whether material information regarding the risk of foregoing medical treatment must be provided where a patient refuses care has not been extensively considered in Canada. A brief discussion by the British Columbia Supreme Court in obiter appears to support a doctrine of so-called “informed refusal.” 52 American jurisprudence has repeatedly upheld a physician’s duty to disclose risks of foregoing a recommended medical-treatment. 53 Further, given the Supreme Court of Canada’s statements that patients have a right to know the risks involved in “foregoing” treatment, held in both Reibl 54 and Hollis, 55 Canadian physicians may well be under a duty to ensure that patients have full knowledge about the risks of declining or delaying vaccinations. 56 Ultimately, it is clear that patients have some qualified right to health, understood as a right to a reasonable level of health care generally compliant with the principles of the
Canada Health Act. 57
Patients can access the core services and treatments provided free of cost, they can refuse any treatment offered for any reason (or for no reason at all), and, if refusing the treatment, they are entitled to full information regarding the risks associated with their decision.
In addition to the above, dismissal may be viewed as a breach of several ethical principles core to the physician’s role, such as: •
Patient Autonomy: It is
axiomatic that patients have the right to refuse treatments, including vaccinations, even if to do so is foolhardy and dangerous. Despite its limited application, this principle serves to remind the physician that patients are within their rights to refuse. For patients who are incapable (such as infants), the principle of patient autonomy extends to the patient’s substitute decision maker – within, of course, certain constraints, some of which were discussed earlier. •
Beneficence and Non-Maleficence: Physicians must act in the interest of their patients, doing good and minimizing harm. Dismissal undermines the duty to care for every patient no matter what their beliefs, values, and attitudes may be, and could result in all manner of health-related harms. 147 •
Solidarity: Physicians must stand with their patients, bearing costs for them and advocating for them. 148 When dismissing refusers, they undermine the solidarity that they are expected to show with their most vulnerable of patients: children. Indeed, it is this solidarity with the child patient that rightly serves to counterbalance the parents’ autonomy, offering the physician further tools and justifications. 149 •
Justice: Dismissal infringes the principle of distributive justice both directly by impeding equitable access to health care, and indirectly by shifting the clinical burden of treating that family to those physicians who choose not to dismiss for refusal. 150
Ultimately, dismissal will
only be ethical and legal under very narrow circumstances, and only in certain jurisdictions, and it will rarely be the proper or best course of action. Many factors correctly serve to limit physician rights to dismiss patients who persistently refuse to immunize. Even if physicians are adamant that the relationship has irreparably broken down due to persistent refusals to immunize, they must nonetheless exercise utmost caution and restraint in relation to dismissal because
many of the College policies take a very restrictive view. The New Brunswick, Ontario, and British Columbia Colleges make it clear that dismissals will rarely be ethically justifiable. The other provinces, save for Prince Edward Island and Québec, will only permit dismissal after repeated reasonable attempts have failed to obtain compliance. Even then, physicians risk violating other ethical, professional, or legal rules (e.g., CMA Code rules permitting patient refusal of treatments, human rights equality standards, or
Charter guarantees of patient rights). Physicians should therefore consider how best to manage vaccine refusers within their practice.
Summary: There are numerous strategies clinicians may employ to maintain a positive doctor-patient relationship with vaccine refusers. Continuation of that relationship is desirable for both public and individual reasons and is likely the only platform from which a vaccine-refusing patient or parent might be convinced, through sound evidence, to ultimately accept vaccination.
To preserve the doctor-patient relationship, and potentially lead the patient to a vaccine-accepting stance, physicians might adopt the following “
Seven ‘A’s” strategy: 155 •
Avoid Confrontation: While vaccine refusers can be frustrating for physicians to counsel, having a debate about immunization is not particularly helpful, and may further entrench vaccine-negative views. Overly strong or strident messaging can often sound like an attack on beliefs, making it unlikely that the refuser will hear the message. 156 A 2010 survey of Ontario parents with children under age sixteen presenting for naturopathic care reported that a majority (50.5%) felt pressure from their allopathic physician to vaccinate. 157 Of those who discussed vaccination with their physician, 25.9% were less comfortable continuing care as a result, and 5% were advised by their physician that their children would be refused care if they decided against vaccination. Parents reported excessive pressure to vaccinate, and felt that discussions were not balanced, injecting a sense of conflict into the relationship.
Thus, first and foremost, respectful discourse is critical to good doctor-patient relationships. Even highly resistant populations can change their views, but that requires targeted messages that build on community values delivered in non-confrontational ways. 158 Physicians should therefore minimize adversarial and positional stances and eschew overtly pressurized tactics. They should avoid repeating vaccination myths lest repetition reinforce those myths among patients. 159 More collegial and motivational interactions can be woven into a routine visit with only a small increase in time. 160
Accept: It is important to
accept and embrace the parent or patient refuser as an autonomous person deserving dignity, and make them know that, regardless of their decision, their opinions are valued. Physicians should not reject a refuser’s values outright. More importantly, physicians should remember that it is the child who is the patient of concern, and that there is no basis for rejecting that patient.
Affirm: Physicians should acknowledge that the parents have good intentions toward the child and that this is a source of common ground. Such an acknowledgement can be powerful. It affirms that both the parent and the physician want the child to be safe, healthy,and happy. This builds trust and allows for further (and more persuasive) conversations to be had in the future. 161
Actively Listen: The physician should never assume or guess why the patient or parent is refusing immunization. 162 Instead, he or she should ask parents about their worries regarding vaccination, and about their understanding of disease risks and vaccine benefits. Physicians should attempt to understand the values which informed the decision to refuse immunization. Listening to the parent’s or patient’s responses is key, and correcting specific misconceptions is critical. 163 •
Advise: Physicians are typically trusted advisors. They should therefore remind parents that not making a decision about immunization is itself a decision (i.e., help correct the “omission bias”). Physicians must ensure that they have advised patients not only of the personal benefits of immunization, but also of the public health benefits, and the potential consequences of non-immunization: that their healthy unvaccinated child may spread a vaccine-preventable disease to high-risk individuals. 164 Presenting information and outcomes in terms of gains and losses can be powerful, 165 and can better direct patients to trusted and reputable sources of further information. •
Advocate: Physicians should always remain an advocate for the patient, who is the child. They should therefore ensure that discussion does not focus on the parent’s (or physician’s) subjective beliefs or fears, but rather on objective evidence from reliable sources of the benefits of vaccination for the child. While physicians should not hesitate to advocate strongly, it is of course important to remain empathetic and sensitive to the parents’ concerns.
Annotate: Physicians should document in the patient’s chart the refusal and the reasons for refusal (or hesitancy), noting that the benefits, risks and responsibilities have all been reviewed. 166
Conclusion
Vaccine hesitancy has increased in Canada, and patient dismissal for vaccine refusal has also become more common. Our analysis has demonstrated that
the right to dismiss patients is incredibly narrow, and recourse should not readily be made to it. Indeed, the CMA Code acknowledges that
physicians may simply have to deal with tension between different ethical principles, between ethical and legal or regulatory demands, and between their own ethical convictions and the needs of others. The CMA Code instructs physicians to prioritize the well-being of the patient, to recognize and disclose conflicts of interest, and to resolve them in the best interests of the patient. 172 Physicians, and those who advise them, should therefore be reminded that there is a complex array of ethical, legal, and social considerations which must be weighed on a case-by-case basis before dismissal can be justifiable, and dismissal as a blanket policy should be rejected outright. Instead, the individual circumstance of each vaccine-refusing patient must be carefully assessed with particular attention paid to the best interests of the child.
The most powerful tool for combating vaccine hesitancy and refusal is a good doctor-patient relationship, the maintenance of which is at the heart of the physician’s legal, ethical, and professional responsibilities. A strong and continuing relationship preserves the possibility of future engagements, including ones that alter the stance of the vaccine refuser. Further, l
earning to disagree in a cordial and honest way with minimal conflict is important for both physicians and patients, as is the gradual accumulation of the trust that may lead to informed decision-making, and ultimately to vaccine acceptance. Given the central role that immunization programs play in meeting state health objectives and obligations, provincial or federal immunization regulations should be adopted which better highlight and clarify the responsibilities and rights of all parties implicated in the immunization setting. Additionally, policymakers such as national and provincial professional Colleges should offer more specific instruction (similar to the clarifications proffered by the Canadian Paediatric Society and the Ontario College) as to how physicians can best meet their public health responsibilities, how to deal with parents who are acting in ways they consider to be contrary to the child patient’s interests, and what constitutes reasonable attempts to address non-compliance.
