To vaccinate or not to vaccinate? The legal dilemma schools face

One of The Ministry of Health (MoH) is conducting the second phase of its comprehensive Yellow Fever Preventive Mass Vaccination Campaign. One of the key populations being targeted by the vaccination are schools, especially secondary, primary, and pre primary centres of learning.

To support the exercise, the MoH has conducted a commendable publicity campaign. Mainstream media has carried this message far and wide. Predictably, social media is where most of the opening is happening. Whereas the official MoH channels continue to carry the vaccination promotion message, the comments and responses are mostly skeptical at best and outright rabid at worst.

Most private schools are struggling with how to deal with the situation. On the one hand, they have clear policy directions from the MoH, Ministry of Education, and Local Governments to vaccinate all eligible children. On the other, they have parents, some of whom are threatening lawsuits should their children be vaccinated without parental consent.

Interestingly, the discussion centers around not whether vaccines, as a broad scientific concept, work or not but rather whether ‘Ugandan’ vaccines are effective and not harmful and whether the entire drive is not laced with a sinister objective from the government.

In Uganda, vaccination is generally governed by the Public Health Act. Under the Act, vaccination against immunisable diseases (as may be declared by the Minister) for children is mandatory (Section 38(1). Schools, especially daycare, nursery, and primary schools are required not to admit a child that has no proof of vaccination (Section 45). A parent who declines for whichever reason to vaccinate a child for the immunisable diseases commits an offence and may be imprisoned for up to three months (Section 45A).  It is irrelevant to the law whether such a reason is religious, cultural, based on superstition, or rooted in genuine fear and skepticism.

Following the Covid-19 pandemic and the attendant hesitancy of some Ugandans to vaccinate, the Public Health Act was amended in appropriate terms. The state of the present law is that the Minister can require any individual in Uganda to be vaccinated for as long as some conditions are met.

Firstly, any mass vaccination must be triggered by either an outbreak or a threatened outbreak of a disease for which a vaccine is available (Section 47). Secondly, the vaccine to be administered must have received prior approval from the National Drug Authority (NDA). Thirdly, the approved vaccine must be provided by the government free of charge and should be accessible (Section 48A).

Moreover, it is an offence under Section 48B to make or publish any misleading or unverified statements concerning the use or efficacy of vaccines.

With the current Yellow Fever  vaccination campaign, I have mainly witnessed two approaches by schools. In the first instance, there are schools that are vaccinating children without the knowledge, information, or permission of their parents/guardians. These schools are motivated by the mandatory nature of the directives they have received from their regulators (government).

In the second category are schools that are purporting to issue consent forms to parents. Vaccination is then done for those children whose parents have consented, excluding those whose parents have declined to issue consent. Despite their well-meaning intent, both approaches are without legal basis and are fraught with legal risk.

The law imposes mainly one obligation on schools: To refuse admission to a child that has no proof of vaccination. The obligation to vaccinate children falls squarely on parents and guardians.

To avoid legal liability from parents and/or sanction from authorities, schools are best advised to write (or issue notices) to parents informing them of the vaccination exercise. The advice should also include a reminder to the parents of their obligations under the Public Health Act. Lastly, schools should be prepared to refuse (re)admission of all learners that may not show proof of vaccination.

This approach is not only legally safe but is also flexible. Thus, a parent who mistrusts the government-procured Yellow Fever vaccines should be free to obtain the vaccination service elsewhere (and perhaps, at a cost) and return their child to school vaccination card-in-hand.

Otherwise, given the negative publicity and quality scandals that marred the public Covid-19 vaccination exercise, and the Hepatitis – B vaccination exercise before it, most Ugandans would be forgiven for viewing the Public Yellow Fever campaign with some apprehension. Despite the forceful black letter of the law, the reality is that ultimately, whether or not the Yellow Fever Vaccination campaign succeeds is going to come down to citizens’ buy-in. This buy-in shall be faster-achieved by providing practical options, not rigid sanction.

Mr Owagage is a pharmacist, a lawyer,  expert in health and medical law.