An interesting court ruling from Graz, Austria: Are school vaccinations a thing of the past?
by Dr. Johann Loibner - October 28, 2010 http://www.laleva.org
The most recent court decision could mean the end of school
With the verdict of the Higher Regional Court of Graz (6 5/10t R) of 19 May 2010 a proceeding came to an end which will mean the end of school vaccinations, at least in their present form .
What had happened?
A second year student of the main school of Kühnsdorf was vaccinated against Hepatitis B as part of a school immunization programme by the medical officer of health of the district Völkermarkt. On 11/10/2004. To implement the vaccination policy of the Supreme Health Council, she [the public medical officer] was asked by the provincial health authority to offer vaccination against hepatitis B. This vaccination was now supposed to be carried out especially on previously unvaccinated children children in their twelfth year of life. As a consequence of this vaccination, a student suffered an inflammation of the optic nerve. The result was a severe visual impairment causing almost total blindness, with a reduction in employment potential of 90%. The Federal Social Welfare Office acknowledged the bilateral optic atrophy (destruction of the optic nerve) to be vaccination damage as a result of the hepatitis B vaccination. The parents appealed to the Regional Court of Klagenfurt for compensation for the damage to his health their son had suffered.
The public health officer was sentenced to pay compensation for the vaccine injury. The court reached its decision by reason of her being guilty of medical malpractice, because she had failed to inform the students who were to be vaccinated properly of the risks of vaccination. This practice of vaccination is similar in virtually all schools in Austria. The recent court decision means that school vaccinations in their present form are no longer permitted.
During this proceeding it became clear that there is astonishing ignorance about the legal situation concerning school vaccinations. Doctors, parents, as well as authorities are poorly or not at all informed about the legal foundations of the vaccination in schools.
The opinion was e.g. presented that "school vaccination is a normal process during the school year", or that "vaccination against hepatitis B was such a school vaccination". Such statements give the impression that school vaccinations are simply school events and detract from the fact that vaccinations are medical procedures which have consequences for the health of those who receive them. Teaching staff, doctors and even a large proportion of lawyers are unaware of the fact that there is no compulsory vaccination in Austria, and that there is therefore no obligatory vaccination in schools.
This fact only became known in the context of a similar court case. The Supreme Court (1Ob271/06v) has clarified in its decision of 27.03.2007, that school vaccinations are not an act of public authority. This means that there are no compulsory vaccinations in schools. From the days of compulsory vaccination against smallpox and tuberculosis, many authorities are still under the impression that vaccinations fall under acts of government authority and are consequently obligatory.
In ignorance of the actual situation, the argument was presented that "This vaccination is an official school vaccination which is carried out by a medical officer of health and is recorded in the vaccination certificate" and that this clearly indicates that this vaccination qualifies as an act of authority, since the "the state" had extended an activity in the normal framework of vaccination campaigns into a state school.
The Supreme Court disagreed with this view. School vaccination is a purely private sector affair. The fact of a "school vaccination" did not represent an act of authority. There is no legal requirement for vaccination, and therefore no obligation for school vaccinations.
Requirement for informed consent
Informed consent is known to have so far consisted of parents being asked to complete a questionnaire four weeks prior to to the vaccination date. The parents are asked whether the child had been healthy in the past four weeks, whether they were aware of any allergies or immune deficiency. Immediately prior to the vaccination, the vaccinating doctor would then ask the student if he was feeling well.and whether he was healthy. Such a conversation, even though friendly, however has nothing to do with informed consent, even if the student's answer was YES.
What is informed consent about?
Informed consent covers several issues concerning vaccination.
It is especially inappropriate to talk only about the risks of the disease.
The information provided must also include a detailed explanation of the dangers and risks of vaccination. Such information comprises several items:
• Is the vaccination to be carried out an intervention of an urgent
• Is there a real and immediate danger of catching the illness?
• If the intervention indicated as a matter of urgency?
• Is the student in an at-risk group?
• How high is the risk of the disease? Can the infection to be prevented cause serious harm?
• The risks and dangers (side-effects) of vaccination
• What is the risk of vaccination?
• Are there serious, though rare side-effects?
How should the information be provided?
The information given to ensure informed consent must be provided personally. To fill in forms and ticking boxes with either YES or NO is no explanation.
Vaccination is not a medical treatment but medical prophylaxis. It is therefore not an urgent health measure requiring immediate action. Especially in the case of non-urgent medial measures the patient's right to self-determination must be respected. The person to be vaccinated or their representatives must therefore be put in a position to personally weigh the risk of the disease and of the vaccination. The aim of the education is to enable the patient to assess the risk. One needs to ensure that the person to be informed, or that person's representative, has been able to decide freely whether to vaccinate or not. This court decision has treated people's right to self-determination with the respect it deserves and is to be welcomed.
This ruling has far-reaching consequences.
It has to be clear to all the school authorities, school doctors and medical officers that there are no legally required vaccinations in schools. The term "school vaccination" is misleading. A vaccination carried out without the consent of the parents may even lead to criminal prosecution.
The parents of school children must be informed in person.The information they are given must be comprehensive. The information has to be such that parents understand the risk of the disease as well as the risk of vaccination. Only then can they choose freely whether they want the vaccine for her child or not.
To date, all information, questionnaires, brief questions the child is asked, etc. have been inadequate. Vaccination without prior information are instances of medical malpractice. Doctors can therefore be sccessfully sued for compensation in case of damage to a child's health that occurs after a vaccination.
No pressure must be put on parents concerning vaccination, by the school.
Dr. Johann Loibner
25. October 2010
Translated from the German original by Erwin Alber email@example.com
The original in German can be found here: