Children can be vaccinated against the will of their parents

From mid-July, 12-year-old children in Switzerland can be vaccinated against Covid. In a reply to Parliament, the Interior Department of Alain Berset (SP) writes that the child does not need the consent of the parents. The jurisprudence proves him right – but leaves some questions unanswered.

On Friday, the Medicines Agency Swissmedic approved the Pfizer/Biontech Covid-19 vaccine for adolescents between the age of 12 and 16. The Federal Commission for Vaccination (EKIF = Eidgenössische Kommission für Impffragen) will decide on an official recommendation in the second half of June, according to its president Christoph Berger.

If the EKIF provides the appropriate recommendation, as can be expected, the Federal Office of Public Health (FOPH) wants things to then proceed quickly: "We are doing everything we can to ensure that vaccination is also possible for children and adolescents as soon as possible," said FOPH Director Anne Lévy in an interview with CH Media at the end  of April.

Specifically, 12-year-olds can be vaccinated "from mid-July" if this is recommended by the EKIF, as Virginie Masserey, head of the Infection Control Section at the FOPH, told the media last week. There are enough vaccine doses available to vaccinate all young people who wish to do so by the end of the year.

Minors "largely capable of judgment"
And if young people express this wish, they can also be vaccinated without the consent of their parents. This was confirmed by the Federal Department of the Interior (FDHA) of Health Minister Alain Berset (SP) in a reply to National Councillor Martina Bircher (SVP/AG) published on Monday.

The reply states that every vaccination constitutes a violation of physical integrity, and therefore requires consent. Such consent can "only be given legally provided if the respective person is capable of judgment". Minors in the age group from 12 to 18 years are, however, also considered to be "largely capable of judgment", as long as they are mentally healthy and conscious. The ability to judge must therefore be assessed on a case-by-case basis.

The recommendations of the FOPH on Covid-19 vaccination should also not deviate from this. In principle. It is therefore not foreseen that parental consent is required for children from the age of 12. If a child is to be regarded as capable of judgment, " the consent of the parents or the legal guardians is not needed," clarifies the Federal Council in its answer.

Parents only allowed to have a say in the event of inability to judge
In its reply to SVP National Councillor Bircher, the Federal Council refers to an information letter that the FOPH sent out in May to the cantonal health directors, cantonal doctors and pharmacists, health insurance companies and professional associations of the medical and nursing professions. The NZZ was the first to report on the paper, which is also available to this editorial office.

Photo: 14-year-old Anna is vaccinated with the Pfizer vaccine in a vaccination centre
Robert Ghement / EPA

With the approval of Covid vaccines for children and adolescents under the age of 16, the "question of the need for consent to vaccination by parents or guardians" arises. The paper also refers to the need for judgment. This is often mistakenly associated with the age of legal maturity.

There is no rigid age limit, however. Rather, "the individual ability to judge in the specific case" is decisive. With regard to vaccination, a child or a young person must be able to assess the impact of the intervention on his/her body in order to be considered capable of judgment, the FOPH continues. As a rule, it can be assumed that the ability to judge appears impossible up to 10 years of age, and can be assumed from the age of 15.

In the case of children and adolescents between 10 and 15 years of age, this ability can be gradually granted. And, in the decisive sentence of the document, the FOPH then concludes: "The holders of parental authority only have to give consent to vaccination if a child or a young person is incapable of judgment."

Even under 16-year-olds can therefore agree to a vaccination without the consent of the parents, provided that they are considered capable of judgment.

Federal Supreme Court left crucial question unanswered
The FOPH's position is based on Swiss case law on this issue. In 2008, the Federal Supreme Court sentenced an osteopath to a fine because he had continued treatment against the will of a 13-year-old. The doctor justified his actions in court with the fact that the girl's mother had not intervened, and that he had therefore assumed her consent to the treatment. The highest court in Switzerland held that the girl was capable of judgment, and that the mother should therefore not be regarded as a legal representative.

In June 2020, the Federal Supreme Court upheld the appeal of a father of three minor children. The man, who lives separately from the mother of the six children but shares custody with her, wanted to have the three children, who were still minors, vaccinated against measles in accordance with the official recommendations. The mother was opposed to this.

In its judgement, the Federal Supreme Court came to the conclusion that the decision on the vaccination question had to be taken by the child and adult protection authorities (Kesb = Kindes- und Erwachsenenschutzbehörden) due to the lack of a common position of the parents. And the Federal Court instructed the Kesb to base this on the recommendation of the Federal Office of Public Health as a "competent federal authority". The supreme court left open, however, how it would decide in the case of a decision “not to vaccinate their child against the measles made by both parents with joint custody".