KUALA LUMPUR, June 30 ― The recent deaths of several children from preventable diseases has cast a spotlight on their parents’ failure to immunise them, throwing up the next question: Can the adults who refuse vaccination for their offspring be prosecuted?
While one legal rights protection group suggested this was possible, several family and criminal law specialists contacted by Malay Mail Online said existing laws do not make it mandatory for parents to vaccinate their children, and therefore do not constitute negligent behaviour, which is a chargeable offence.
“The law as it stands does not make vaccination compulsory, so we cannot take action,” criminal law practitioner Datuk Geethan Ram Vincent said.
“In the bigger picture, when we see people not vaccinating, we cannot easily conclude it's neglect. We can't blame them when these days there are so many opinions.”
He pointed out that some have opted not to vaccinate due to articles advocating non-vaccination.
The best way to deal with the conflicting views on vaccination would be to introduce a law and to also provide easy access to vaccines, he said.
“So because of different opinions in terms of medical and religious, that's why it's best you just legislate and make it mandatory for them to do vaccination,” he said.
On Tuesday, Lawyers for Liberty said parents may find themselves breaching Section 31 of the Child Act 2001 and Sections 269 and 270 of the Penal Code if they do not vaccinate their children.
Under Section 31, a parent would be considered to have neglected a child in a manner likely to cause him physical or emotional injury, if the parent failed to provide “adequate food, clothing, medical or dental treatment, lodging or care” despite having the resources to do so. This is punishable by a maximum RM20,000 fine or maximum 10-year jail term, or both.
Section 269 covers a negligent action in which a person knows or has reason to believe is likely to cause the spread of infectious diseases dangerous to life, while Section 270 is similarly worded but covers malignant action. Section 269 is punishable by a maximum six-month imprisonment or fine or both, while Section 270 comes with a maximum two-year jail term or fine or both.
Geethan explained that in law, “neglect” involves the deprivation of a child's basic needs, such as food and water. While vaccination was “necessary”, he said it did not fall into the basic need category.
Deprivation of “medical treatment” would include situations where a sick child is not taken to see a doctor, he said, emphasising that it is different from immunisation which is “preventive” in nature.
Section 269 also does not apply to parents who fail to ensure their children receive immunisation shots, he said, citing as example cases in which people donate blood despite knowing that they have Acquired Immunodeficiency Syndrome (AIDS).
Two other lawyers similarly noted there is currently no mandatory vaccination law and one, former Malaysian Bar president Ragunath Kesavan went a step further and said having such laws to force parents to vaccinate their children may not be effective.
“Firstly, it must be mandatory, some provision to say under the law it's compulsory for all children to be vaccinated. So if you don't make that compulsory, you can't take action against parents,” the criminal law practitioner said.
“So having a law doesn't mean it's going to be done. It's more important to create more awareness and make it available everywhere, in schools and in government hospitals clinics have to follow up.
“A lot of people may not have access to vaccination. They probably cannot afford it as well,” he added.
As for whether it is possible for a parent to be sued over the spread of infectious disease from their non-vaccinated child to an infant who is too young to be vaccinated, Ragunath said such a lawsuit would have virtually no chance of success as the person suing would have to prove various factors in court, such as the person they picked up the disease from and length of exposure.
“It's going to be impossible to prove and it's not going to work. It could have been picked up from anywhere else,” he said.
Senior family law practitioner Datuk Baljit Singh Sidhu said that there are no laws locally or in any other country where vaccinating children is compulsory.
“There's no such obligation in law. There's only moral obligation, no legal obligation,” he said.
He said not giving vaccines to children is not “neglect” as some parents may prefer them to build up their own immune system naturally, citing as analogy people who prefer not to take antibiotics and rely on their own body's immune response instead.
Calling non-vaccination neglect would be “stretching the law too wide”, Baljit said, contrasting the essential needs of food to vaccine where some hold different views.
Malaysia’s growing anti-vaccination movement is now in the spotlight with the deaths of five people from diphtheria, a preventable disease.
Three of them were children under the age of 10 in three different states. It was later found out they had not received vaccination shots, or did not complete them.