By: Jesil Cajes, Solicitor, McWilliam Tyree Lawyers, Wellington
In August 2021, New Zealand expanded its COVID-19 vaccination rollouts to children aged 12 to 15 years old. At the time of writing Medsafe has given provisional approval for the Pfizer vaccine for children aged 5-11 years old. This raises an important issue on whether children under the age of 16 can consent to medical treatment such as the vaccination. In this article, the term “vaccination” refers to COVID-19 vaccination.
This article examines how New Zealand law regulates the issue of children under 16 years of age consenting to, or refusing medical treatment, specifically COVID-19 vaccination.
Children over 16 years
The law is clear under the Care of Children Act 2004 (COCA) that a child over the age of 16 can give or refuse consent to any medical treatment or procedure which includes vaccination as if they were of full age. They do not need their parents or guardians’ consent.
Unless there are special circumstances, they are presumed to have the capacity to give a valid consent to any medical treatment or procedure and health professionals do not have to make further inquiries as to their capacity.
Young people and children under 16
The law is not explicit whether children under 16 years old can consent to vaccination. The primary reason for this uncertainty is the lack of clear statutory provision that deals with children’s consent in New Zealand. Instead, this is governed by a patchwork of legislation, including the COCA, New Zealand Bill of Rights (NZBORA), and the Health and Disability Services Consumers’ Rights Code (the Code).
COCA is silent whether children under 16 years old can give a consent. However, this does not mean that they are unable to consent or refuse consent to any medical treatment. Under NZBORA, everyone has the right to refuse medical treatment and there is no defined age at which any person may be regarded as competent.
Similarly, under the Code, everyone – adult or child – is presumed to be competent to make such decisions unless there are reasonable grounds for believing that a person is not competent. This follows that if a health professional is satisfied the young person fully understands what is involved with the treatment, then the young person can consent. The key to children’s consent is competence.
How New Zealand determines competence depends on whether the children are able to understand the situation and to make decisions. This is called the “Gillick” competence, named after an English legal case which established the benchmark for competence.
The Gillick competence means that if a young person or child, at any age, is mature enough to make a reasonable decision themselves, then a medical professional should follow their voice and/or take their views into account. The law also presumes that the older the child/young person is, the more likely it is that they will be mature enough to make their own decisions.
In Re SPO, aNew Zealand case, the Family Court applied Gillick and found that a 15-year-old could consent to vaccinations, despite his mother’s refusal. The Court decided that the young person in that case has the right to consent because he fully understood what was involved in making the decision. However, the courts have emphasised that immunisation decisions must be made on an individualised basis, taking into account the circumstances of the particular child.
In one case, the court noted that it is not a matter of simply applying the blanket immunisation schedule in the Ministry of Health Guidelines to all children (GF v Chief Executive of Oranga Tamariki – Ministry of Children  NZFC 8449).
In a different case, the court directed an independent medical report under the Care of Children Act 2004 to examine specific issues relating to the risks and benefits to the particular child (Lawson v Pugh  NZFC 5092).
New Zealand also adheres to the international agreement called the United Nations Convention on the Rights of the Child (UNCROC). UNCROC guarantees children the right to consent and provides that their best interests are the primary consideration in all decisions – that will include vaccination.
Disputes between Parents or Guardians
Vaccinations are not mandatory and sometimes parents or guardians will have different views.
If the guardians of a child or children (who will usually be their two parents) cannot agree on whether a child should be vaccinated, and they are not able to reach agreement through mediation or other means then either party can apply to the court for resolution of the dispute.
The court must consider what the children’s views as to vaccination. The child/ren can convey their views to the judge directly, or through a lawyer appointed for the child. This goes back again to Gillick competence where the court must take into account what information the children have received, their understanding and abilities to weigh up risks, their age, experience and acceptance of their health conditions.
It is likely a court would take into account the vaccine information available from the ministry while making an individualised assessment of the child’s circumstances.
The paramount concern of the court and guardians is the welfare and best interests of the child. Having a dispute on vaccines decided by a court does not mean the child will automatically be directed to be vaccinated. The court will consider the welfare and best interests of the child in that child’s particular circumstances,