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Executive Summary of Report on |
This project was initiated by a member of the Commission and in response to a request from the Association for Vaccine-Damaged Children.
Routine childhood immunization is a cornerstone of public health practice in Canada. It has received the strong support of government, the medical profession and the great majority of the public. It has achieved much success in the reduction of many childhood illnesses including polio, diphtheria, whooping cough, mumps and measles.
A vaccine should confer long-lasting protection against disease, be administered in few doses, be inexpensive enough for wide-scale use, be stable enough to remain potent during shipping and storage and have no adverse effect on the recipient. This Report deals with the failure to achieve fully the last of these objectives. In spite of the efforts of medical science, manufacturers and physicians, vaccines sometimes have side effects and adverse consequences may be suffered by the recipients of vaccines.
The extent to which vaccines cause serious adverse consequences is, however, a matter of considerable debate both inside and outside the medical profession. The situation is further complicated by both the difficulty in distinguishing between conditions that are temporally related to the administration of the vaccine and conditions that are caused by the vaccine and by the fact that the system of routine childhood vaccination is not static. New vaccines are periodically introduced and old vaccines are replaced with improved products.
The purpose of this Report is to make recommendations in respect of the compensation of children who can establish that they have suffered serious, adverse consequences as a result of a vaccination or a series of vaccinations. It will be shown that the existing public and private vehicles for the compensation of personal injury are insufficient to provide the financial support needed by those who suffer rare but serious consequences. Special measures are needed to support and assist them.
The debate about the extent and seriousness of adverse vaccine consequences is one that this Report does not enter. It is beyond the expertise and resources of the Manitoba Law Reform Commission even to comment on it, let alone resolve it.
It is a fundamental axiom of the common law of torts that a person is liable in damages for death or injury caused by his or her fault. Consequently, children who have been injured by the administration of a vaccine may sue any person (health care professional, vaccine manufacturer or governmental agency) if it can be proven on the balance of probabilities that the injuries were caused by that person's fault. This compensatory remedy is, however, more theoretical than real. Vaccine-damaged children face such difficulties in establishing the negligence of a defendant and the causal link between the negligence of the defendant and the plaintiff's losses that we are not aware of any case in Canada where a vaccine-damaged child has sued successfully. Some governmental support is available to these children from established programs. Medical treatment is free of charge, pharmaceutical costs are subsidized and some tax benefits are given for extra medical expenses. Social allowances are available to the destitute. Charitable organizations may provide some assistance. In the Commission's view, the current accident compensation system in Manitoba is inadequate to the needs of vaccine-damaged children.
Many jurisdictions throughout the world have introduced special compensatory initiatives to address vaccine-related injury and illness. Consideration is given to only four of them: Québec (the only province in Canada to have such a scheme), the United States, and the two other common law jurisdictions with compensatory schemes, the United Kingdom and New Zealand. The Commission reviews these various schemes including the vaccines covered, compensable injuries, the compensation awarded, procedures and appeals, funding, limitations, tort claims, retroactive claims and the claims experience in each jurisdiction.
The Commission recommends that a discrete no-fault compensation plan, funded by the provincial government, be established to cover past and future vaccine-damaged children. A special initiative is warranted not only by the plight of seriously injured children but also by the fact that the provincial childhood immunization program is heavily promoted by government; it is for the benefit of the whole community and the consent to vaccination is a substitute consent given by parents in the interests of their children. The Reports contains the broad principles on which a compensation plan should operate. The current financial constraints of the Commission prevent it from providing a draft Act or formulating the details and policies for the implementation of these recommendations. To the extent possible, the Commission recommends that use be made of existing programs as models for the implementation of these recommendations. The central recommendation is that Manitoba establish a no-fault compensation plan to cover all children who have suffered a real possibility that the adverse consequences were caused by a vaccination. It is further recommended that the compensation payable be equivalent to that paid under the Personal Injury Protection Plan of Autopac to a child injured in a motor vehicle accident. The Manitoba Childhood Vaccination Injury Compensation Plan would be established within Manitoba Health. The Commission recommends that the claims procedure and appeal structure be modeled on the way compensation claims of the victims of criminal violence are handled under The Victims' Rights Act. The recommendations do not include any restriction on the right of vaccine-damaged children to sue in tort.
The Commission also recommends that Manitoba Health and all health related professional associations introduce initiatives to increase public understanding of the risks and benefits of childhood immunization and thereby increase confidence in the process. It further recommends that Manitoba Health and health care professional associations take all steps necessary to promote the full and complete reporting of all adverse events temporally associated with vaccines.
Report #104
June, 2000
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