Night of the living (legally) dead

Talk about your confirmation bias:  Under Ohio law, if three years have passed since the state thought that you had died, showing up to court under your own power, breathing, and having an intelligent conversation with the judge is not enough to prove that you are living.  Maybe they have a zombie problem that we don’t know about.

In 1986, Donald Miller ran away from home.  Eight years later, his wife had an Ohio court declare him dead so that she could collect social security for their children.

In 2005, Miller escaped from his grave (Florida) and went back to Ohio.  He now wants people to treat him as though he were alive.  Amusingly, his wife widow formally objected to his legal resurrection.  (Takes “he’s dead to me” to a whole new level, doesn’t it?)  The judge refused to say that he was alive.

You see, Ohio’s named-with-an-incorrect-apostrophe law, the “Presumed Decedents’ Law,” gives you only three months to be undeclared dead, or, if you prefer, be declared undead.  Ohioans can be in one of several conditions:  living, presumed dead, erroneously presumed to be dead (the presumption of death having been vacated), and dead.  I believe the symbol for “erroneously presumed to be dead” is this:

artist_formerly_known_as_prince

As Lowering the Bar pointed out, being scientifically alive but legally dead puts Miller in quite a quandary.  As Lowering points out, if Ohio considers him dead “for all purposes under the law of [Ohio],” can it charge him with a crime, especially one that requires a state of mind like premeditation, intent, knowledge, or recklessness?  He might have a great defense: “Hey, judge, for purposes of Ohio law I am dead, and therefore could not have intended to take those chickens for my own use.”  Then again, if he tries to appeal his conviction, the appellate court might consider his appeal is moot because once a criminal defendant is dead, there’s not much an appellate court can do for him.

I think that under Ohio law, we can safely say that science is “dead,” at least as it pertains to determining whether a human organism is living.

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Texas court hears oral arguments in Wakefield v. BMJ–how much can Age of Autism get wrong in one paragraph?

The electronic docketing system of the Texas courts is down for maintenance this weekend, so I couldn’t verify this information.  But Age of Autism (whose latest post as of this writing calls Jenny McCarthy a “Beauty Queen,” apparently for her career-launching spread in Playboy magazine) said it, so it must be right: the Texas Third Court of Appeals has heard oral arguments in the appeal by Andrew Wakefield from an order of the trial court dismissing his lawsuit against BMJ, Brian Deer, and Fiona Godlee for libel in relation to an article calling him a fraud.  I did find the brief of BMJ, Deer, and Godlee, which was filed on March 4, making a May 22 oral argument about right.

What was amazing about Age of Autism’s short post on the topic was how much they got wrong about the court and the case.  Here’s the entire post:

Yesterday, the three judges of the Texas High Court heard the appeal over jurisdiction in the case of Andrew Wakefield against the British Medical Journal and journalist Brian Deer. The case was presented by attorney Brendan K McBride, which was felt to be well-conducted. It will now be between 1 and 6 months before the judges return their verdict.

So, how did Age of Autism get it wrong?  Let me count the ways:

  1. “the three”:  There are six judicial officers on the Third Court of Appeals.  This case was heard by a panel of three of them, but they do not constitute “the three” judicial officers of the court.
  2. “judges”: The judicial officers on the court are called “justices.”
  3. “High Court”: The Third Court of Appeals is an intermediate appellate court.  That means that it is not the court of last resort in the state, and therefore does not carry the honorific name of “High Court.”
  4. “British Medical Journal”: The BMJ hasn’t been called this in 25 years; they now go by “BMJ.”
  5. “against the [BMJ] and journalist Brian Deer”: The case had a third defendant: BMJ editor Fiona Godlee.  OK, this is a minor point, but it’s still an error, so I get credit for pointing it out.
  6. “which was felt to be well-conducted”: Huh?  This phrase shows the evils of the passive voice, the use of which every law school professor believes will lead to the extinction of Homo sapiens.  Who “felt” it to be “well-conducted”?  I assure my dear readers that Age of Autism was not speaking on behalf of the court.
  7. “It will now be between 1 and 6 months before the [justices] return their [decision]”:  Says who?  I could find nothing in the Texas Rules of Appellate Procedure or the court’s local rules that indicates any time frame for a decision.  This might be an average of the court, but it’s dangerous to predict a time frame for an appellate court’s decision in any particular case except for those cases that have definite terms in which they issue decisions before the end of the term, like the U.S. Supreme Court does.  I could find no indication that this was the case for the Third Court of Appeals.  I am ready to stand corrected if a Texas attorney has other information.
  8. “verdict”:  An appellate court does not issue a “verdict.”  A verdict is a declaration by a trial court that establishes the ultimate facts and some legal conclusions in a case (I know, fellow lawyers, it’s really the judgment resulting from a verdict that does that, but let’s keep it simple for our lay readers, OK?).  An appellate court issues a “decision” or “opinion” and, eventually, a “mandate.”

One of the comments to the post, by “AussieMum,” stood out for its fundamental misunderstanding of the law:

If Dr. Wakefield’s appeal is successful, is he still subject to the BMJ’s lawsuit based on the Texas Citizens Participation Act (the “Texas Anti-SLAPP statute”) or is he home free?

Maybe we should give AussieMum a little slack since she is probably from Australia, but if she has read anything about the lawsuit, she would realize that the BMJ’s anti-SLAPP motion is not a “lawsuit” that Wakefield is “subject to.”  It’s a defense to Wakefield’s lawsuit against BMJ, Deer, and Godlee.  For a good description of Texas’s anti-SLAPP statute, see my favorite legal blog, Popehat.

So, Age of Autism, perhaps you should inform yourself a little better about the law before you comment on legal matters.  And, come to think of it, perhaps you should inform yourself a little better about science and medicine before you base an entire website on the safety of vaccines.

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Russia recriminalizes libel–Putin says that it will help scientists

I wasn’t surprised to see recently that Russia has recriminalized libel, raising the penalty for it by orders of magnitude (from $100 to $160,000).  Fortunately, though, there is still no penalty of imprisonment for the offense.

What surprised me was Russian President Putin’s statement that the law will be of benefit to scientists.  So I started thinking (despite the advice of my doctors): do legitimate scientists ever sue people for libel?  If so, is it a good idea for scientists to use libel law to protect reputation?

I could not remember an instance of a legitimate scientist suing someone for libel.  A quick search found a big case from a couple of years ago, when a Canadian climate scientist sued a paper and an author for libel.  But I still think it’s unusual (is that just my bias speaking?).

Indeed, libel laws are usually used by hucksters masquerading as legitimate scientists in an attempt to silence legitimate scientists (think British Chiropractic Association and Andrew Wakefield).

In order for science to work and human knowledge to advance, scientists need to be free to criticize each other without fear of lawsuits from other scientists.   That’s why groups like Sense About Science are working to keep libel laws out of science.

What really puzzled me about Putin’s statements, though, was his assurance that ““It is by a definition that a person involved in politics is unlikely to go to a court to accuse someone of libel.”  Of course!  And to think that critics of the new law have said that the law is intended to silence opposition to the government.   Really, when was the last time Russian politicians used the force of law to silence an opponent?  (And Tuesday doesn’t count.)

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Attention Anti-Vaxers: The Straw Men in Black Are Coming to Get Your Children

Autism blogger extraordinaire Liz Ditz has brought to my attention an article on mothering.com, whose motto is “Inspiring natural families since 1976.” I’m not exactly sure what they mean by “natural families,” but I’ll give them the benefit of the doubt and assume that they don’t mean to exclude adopted children.

The online article

The article in question (hey, I’m a lawyer–I get to write like that) is written by anti-vaxer Barbara Loe Fisher, Grand Poobah of the National Vaccine Information Center (NVIC). As many of you know, NVIC’s sole mission is to convince parents not to vaccinate their children–oh, sorry, I mean that it is to “prevent[] vaccine injuries and deaths through public education and [to] defend[] the informed consent ethic in medicine.”

The article starts with a question from a site visitor asking two questions: whether her state’s child protection authorities “have the power to take my children and force vaccination” and whether a doctor or other medical provider can “force vaccination on my family or report me to child protective services for declining vaccines”:

I stopped vaccinating my son because I believe he had a severe rash due to a vaccine. I have done some further research and I am strongly opposed to any more vaccinations, even for any child I may have in the future. I am concerned for the possibility of child protective services coming to my door and trying to take my son. Do they have the power to take my children and force vaccination? Furthermore, the last pediatrician I went to refused to treat my son because I did not want to continue vaccinating. Can a practitioner force vaccination on my family or report me to child protective services for declining vaccines?

This is something I know a little bit about, for reasons that I won’t describe in order to help me protect my anonymity. I’ll just say that in my years in the workforce I have become familiar with thousands of child-abuse-and-neglect cases.

You can tell that Fisher’s answer is going to be utter nonsense when the second sentence is, “I have always encouraged women to listen to their mother’s instinct and get more information when they sense their children are in danger but are being told to ignore their instincts and obey the doctor’s orders.” Um, Barbie? How can you “listen to your instinct” and “get more information” at the same time? Isn’t an instinct something that is automatic and performed with no conscious planning? If you get information, haven’t you moved beyond instinct?

Anyway, Fisher spends quite a bit of time spouting off on vaccination laws and exemptions that parents may be able to use to avoid vaccination. Her description is actually fairly accurate. But she doesn’t answer the questions that she was asked, at least for quite a while.

When she does get around to answering the questions, her answer seems to be a long “yes”:

Unfortunately, doctors in positions of authority in a state’s health, education or social service system can report parents for failing to vaccinate their children according to state laws and charge parents with child medical neglect. If they persuade a judge to order it, a child can be forced to be vaccinated according to state laws. This does not happen frequently, but it does happen, especially during divorce cases involving child custody battles between parents. It is also more likely to happen when parents take a child to a hospital or clinic for an illness and, when asked if the child is up-to-date on vaccinations, the parents say “no” and then refuse to have the child immediately vaccinated. Some hospitals and clinics have a policy that requires attending personnel to make a report to the state social service agency when parents refuse to vaccinate a child.

There’s a lot going on in this paragraph. Most notably for me, though, is that Fisher conflates action by the government through a child-protective-services agency and action by one parent who is in a dispute with another parent. She seems to be calling the actions of a parent who vaccinates a child “forced vaccination” if the other parent does not want the child vaccinated.

The law

“[D]uring divorce cases involving child custody disputes,” a judge has to decide which parent gets to make decisions about the child. In most cases, the parents are given equal rights to make decisions. Usually, the consent of only one parent is required for a medical procedure. Therefore, one parent can consent to the vaccination of a child over the objection of the other parent. I don’t know for sure, but I think Fisher may be saying that a parent who does not want to vaccinate should be able to prevent the other parent from vaccinating. Or maybe she has heard of cases where a judge has specifically given medical-decision-making rights to a parent who wishes to vaccinate over one who doesn’t. Either way, that’s not even in the same ballpark as the government intervening to force vaccinations on children against the wishes of both or all parents or guardians.

So, you ask, can a government agency vaccinate a child against the wishes of the parents? This is actually two questions: Is there some legal procedure in place that the agency can use to obtain the authority to vaccinate? And, as a substantive-law matter, can the state overcome the significant constitutional rights of parents so as to persuade a judge to require the vaccination?

The answer to the first question is an easy “yes.” As far as I know, all states have procedures by which a doctor or state agency can ask a court to order that a particular medical procedure be performed on a child without the consent of, or against the wishes of, the parents. This is true even if there isn’t enough of a problem with the parents to take custody of the child away from the parents. Although I have heard of this procedure being used to treat children of parents whose religion prohibits a necessary life-saving treatment, I have not heard of any cases, and couldn’t find any cases in the last 50 years, where a court has ordered a child to be vaccinated.

The answer to the second question is far more difficult. Fisher says, “If [doctors or state agencies] persuade a judge to order it, a child can be forced to be vaccinated according to state laws.” Well, sure. But what does it take to “persuade a judge to order it”?

Both state law and the federal constitution will come into play. A few years ago, the U.S. Supreme Court reiterated in Troxel v. Granville that the federal constitution gives parents a fundamental right to the care, custody, and control of their children. Like all constitutional rights, this one isn’t absolute. If a parent poses a substantial risk of “serious harm” to a child, then the state can intervene to protect the child.

Laws differ from state to state in the U.S. (damn you, federal system!), but they are similar enough thanks to the gobs o’ money that the federal government gives states (after first taking it away–sorry, I mean, collecting it in taxes) under the authority of the Child Abuse Prevention and Treatment Act (CAPTA). CAPTA (in section 111(2)) provides us with a basic definition of “abuse or neglect,” which is what a state must be preventing or treating in order to receive federal funds for its efforts, and which therefore forms the basis of most, if not all, state laws establishing child-protective standards:

[T]he term “child abuse and neglect” means, at a minimum, any recent act or failure to act on the part of a parent or caretaker, which results in death, serious physical or emotional harm, sexual abuse or exploitation, or an act or failure to act which presents an imminent risk of serious harm.

Notice that if a child has not been already harmed, the law requires that the actions or inactions of a parent cause “an imminent risk of serious harm.” So does a failure to vaccinate cause “an imminent risk of serious harm”? In most cases, no.

It may be helpful to look at the advice of the federal agency responsible for collecting and reporting the statistics, the Children’s Bureau of the Administration on Children, Youth and Families of the Administration for Children and Families (that’s not a typ0–the two administrations both exist and are named very similarly) of the U.S. Department of Health & Human Services. The Children’s Bureau’s website has a page on the definitions of neglect. On that page is a description of “medical neglect,” which it breaks down into two types:

  • Denial of health care—the failure to provide or to allow needed care as recommended by a competent health care professional for a physical injury, illness, medical condition, or impairment. The CAPTA amendments of 1996 and 2003 contained no Federal requirement for a parent to provide any medical treatment for a child if that treatment is against the parent’s religious beliefs. However, CAPTA also designates that there is no requirement that a State either find or be prohibited from finding abuse or neglect in cases where parents or legal guardians act in accordance with their religious beliefs. While CAPTA stipulates that all States must give authority to CPS to pursue any legal actions necessary 1) to ensure medical care or treatment to prevent or to remedy serious harm to a child or 2) to prevent the withholding of medically indicated treatment from a child with a life-threatening condition (except in the cases of withholding treatment from disabled infants), all determinations will be done on a case by case basis within the sole discretion of each State.
  • Delay in health care—the failure to seek timely and appropriate medical care for a serious health problem that any reasonable person would have recognized as needing professional medical attention. Examples of a delay in health care include not getting appropriate preventive medical or dental care for a child, not obtaining care for a sick child, or not following medical recommendations. Not seeking adequate mental health care also falls under this category. A lack or delay in health care may occur because the family does not have health insurance. Individuals who are uninsured often have compromised health because they receive less preventive care, are diagnosed at more advanced disease stages, and, once diagnosed, receive less therapeutic care.

Although you could isolate the words “all states must give authority to CPS to pursue any legal actions necessary . . . to . . . prevent . . . serious harm” from that description and argue that a failure to vaccinate is “neglect” because vaccines are necessary to “prevent serious harm,” the gist of this is, to me, that there has to be some existing medical issue or concern that a parent is failing to treat before it is considered “neglect.”

The courts seem to agree. After a bit of research, I have come to the conclusion that courts will find a failure to vaccinate to be “neglect,” and will take action to require vaccination, only when there is a local outbreak of a particular disease that creates a substantial risk of harm to a child. According to an article on the American Medical Association’s website, in 1991 a court in Philadelphia permitted public health authorities to immunize six children for measles against their parents’ wishes because of a local outbreak of more than 500 cases and seven deaths.

I was able to find only one published case in which a U.S. court found that failing to vaccinate a child constituted neglect. In In the Matter of Christine M., a 1992 New York case, two-year-old Christine, a resident of “a busy inner-city neighborhood” of Brooklyn, accidentally ingested some rat poison and ended up in the hospital. While there, hospital staff recommended to Christine’s parents that she be immunized against measles because there was a “serious measles outbreak or epidemic” in New York City. Doctors could not convince Christine’s father to vaccinate her; he objected to vaccines for religious reasons. Interestingly, the mother knew of the value of vaccines, had vaccinated Christine against several diseases without the father’s knowledge, and wanted Christine to be vaccinated against the measles.

The New York Family Court for Kings County concluded that “a parent’s knowing failure to have a child immunized against measles in the midst of a measles epidemic or outbreak clearly places that child’s physical condition in imminent danger of becoming impaired,” which was the standard required under New York law for a child to be considered “a neglected child.” But by the time the court rendered its written decision, two years later, the measles epidemic had subsided, and the court declined to require that Christine be vaccinated.

There are four key points here: One, although Christine was reported to authorities because of her father’s failure to vaccinate her, she came to the attention of medical providers because she had gotten into rat poison. Two, Christine’s mother wanted to vaccinate her, and it’s impossible to know what the court would have done if the parents’ positions had been aligned. Three, the court found “neglect” only because there was, at the time of the initial report to child protective services, an outbreak of measles that placed Christine at higher-than-normal risk for contracting the disease. Four, the court didn’t actually order that Christine be vaccinated.

During the few weeks it has taken me to write this point, an interesting coincidence occurred: an Australian court ordered a 40-hour old baby to be immunized against hepatitis B against the religious objections of the parents. Like the few U.S. cases I was able to find, the court in Australia ordered the vaccination because the child was at a higher-than-usual risk of contracting the disease–its mother had the disease. The court refused ongoing vaccinations, and ordered only the first two “emergency” vaccinations.

In sum, I am comfortable saying that in the U.S., and apparently in Australia, it is extremely rare for a court to order that a child be vaccinated, and it happens only when the child is in some unusual circumstances that create a significantly greater-than-average risk of contracting a disease or suffering some harm.

Clinics’ and hospitals’ policies

As far as policies go, I don’t have access to any hospital’s or physician practice’s policies, so I can’t say whether any of them have policies requiring a report to child protective services merely because a parent refuses to vaccinate a child. But I did find the policy of the American Academy of Pediatrics (AAP), which says, “Continued refusal after adequate discussion should be respected unless the child is put at significant risk of serious harm (as, for example, might be the case during an epidemic). Only then should state agencies be involved to override parental discretion on the basis of medical neglect.” In other words, only if there is a significant risk of serious harm to the child due to the specific circumstances of the child, as in an epidemic, should a physician make a report to child protective services; in most circumstances, according to the AAP, a doctor should not make a child-neglect report merely because a parent refuses to vaccinate. Apparently, “Big Pharma” forgot to make its annual contribution to the AAP. Right, Barbie?

Conclusion

Anti-vaxers, pay attention: Unfortunately for your children and for society, you have little to fear from authorities. Your doctors won’t be reporting you for failing to vaccinate, and government agents in dark suits won’t be breaking down your door and dragging your kids off to be vaccinated. You should be much more afraid of the preventible diseases that your child might get than of any action society may take to protect your children from those diseases and from you.

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Mandatory vaccination laws cause…child prostitution?

I’ll bet that you thought that the purpose of laws requiring children to be vaccinated was to prevent dangerous diseases from maiming and killing our youth.

Silly you.

As it turns out, the purpose of mandatory vaccinations laws is to provide the government with children for prostitution.  Let me explain.

There’s an attorney in Piermont (Rockland County), New York, by the name of Patricia Finn.  She bills herself as an anti-vaccine lawyer.  In fact, the title of her website, which shows up as a link in Google search results for her name, is “Rockland County Vaccine Exemption Lawyers.”  Finn went public with a claim that she had been served with “papers to suspend [her] license to practice law.”  She also claimed that she was “being ordered” to disclose the names of clients of hers who did not vaccinate her children.

Enter our hero, Mike Adams, “The Health Ranger.”  In a post on his blog on his website, naturalnews.com, he predicts that the end result of this will be that the State of New York will sell unvaccinated children into sex slavery:

[The demand for Finn’s client’s names] could serve as the starting point for New York State to dispatch CPS [Child Protective Services] workers to the homes of all of Finn’s clients, where their children might be kidnapped by CPS and sold into sex slavery (this is a common behavior of CPS workers across the country, where low-income children simply “disappear” into the system and suffer ongoing sexual abuse by state workers or even high-paying clients, similar to what happened at Penn State).  I don’t have the space to go into all the evidence that CPS functions as a child kidnapping and sex slavery ring, but the organization isn’t called “Communist Pedophile Services” for no reasons.

Actually, Mr. Ranger, the organization isn’t called “Communist Pedophile Services” at all.  A Google search revealed no uses of that phrase other than your own (and several blogs that copied yours).

So, there you have it.  Mandatory vaccine laws caused Attorney Patricia Finn to be investigated and forced to turn over her client list, which will be given to Child Protective Services so that they can kidnap unvaccinated kids to be sold into sex slavery.

Why would CPS go to all of this trouble to obtain sex slaves if they just go around kidnapping kids anyway?  Do unvaccinated kids make better sex slaves than vaccinated kids?

I tried to obtain official information on the investigation into Ms. Finn, but, as I expected, officials in New York could not share any information.  Under New York law, all documents and information relating to the investigation are confidential unless and until the courts find that the allegations (whatever they are) are true and imposes some disciplinary action.  I will be emailing Patricia Finn to ask her for copies of the documents with which she was served.  Mike Adams claims to have seen them, so they must exist.  Anybody want to enter into a friendly wager on whether she will share the documents with skeptics?

A big thanks to Skewed Distribution for the information on these developments.

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Why the Australian Court’s judgment in favor of the Australian Vaccination Network doesn’t bother me

The Supreme Court of New South Wales, Australia, the highest court of that state, has issued a judgment (decision) declaring that the state’s Health Care Complaints Commission (HCCC) had no authority to issue its Public Warning about the Australian Vaccination Network’s (AVN) website.   The HCCC found that the website

  • provides information that is solely anti-vaccination
  • contains information that is incorrect and misleading
  • quotes selectively from research to suggest that vaccination may be dangerous.

After that, the New South Wales Office of Liquor, Gaming & Racing (OLGR) (perhaps my favorite public agency name ever) revoked the licence (spelled the Australian way) of the AVN to engage in charitable fundraising.

The AVN sued, apparently claiming that the HCCC had no jurisdiction, or power, to investigate the complaints against it that resulted in the warning.

A warning of my own before I go any further: I am a U.S. lawyer.  I don’t know a heck of a lot about Australian law.  But both U.S. and Australian law are based on English law, and the Australian judgment seems to be written in a language approximating the English language with which I am familiar.  Therefore, I am going to take a stab at interpreting it.  But don’t rely on my explanations here in the conduct of any of your personal affairs.

I’ve got four reasons why this decision really doesn’t bother me, as much as I hate people who try to turn parents away from vaccinating their children:

Reason # 1:  The court did not find that the AVN was truthful, correct, or unbiased.

The court concluded that the HCCC didn’t have the legal power to investigate the initial complaints against it (which were made by two or three apparently caring citizens).  It did not, in any way, shape or manner whatsoever, find that (1) the complaints were unjustified, (2) the HCCC’s conclusions were incorrect, or (3) that the AVN was justified in doing what it did.  This was a decision based solely on the failure of the evidence to establish some facts that were necessary for the HCCC to exercise its powers.

The key fact that the court said would be necessary for the HCCC to exercise its powers is that a particular person was affected by the AVN’s statements.  The court said that there would have to be evidence that there was an identifiable person who did not receive vaccinations because of the AVN’s statements or actions before the HCCC could act.  The only evidence presented, however, was general information about vaccination rates.

Reason # 2: The decision doesn’t permanently prevent action by the HCCC

I think, then, that if a complainant could show that there was an identifiable person who was unvaccinated because of the AVN’s website, a new complaint making the same allegations could be investigated.  As far as I can tell from what I have read, the complaint doesn’t have to come from the unvaccinated person.  Any resident of New South Wales who hears about a parent who did not vaccinate a child because of what the AVN says should be able to complain to the HCCC and begin a new investigation that avoids this problem.  Hopefully some accurate publicity in New South Wales will result in a new complaint.

And I have seen reports that the HCCC intends to appeal.  It’s too early to tell, or even to rely on a party’s announcement of an intent to appeal so quickly after a court decision.   Frankly, I’m not sure that it’s worth the while of the HCCC to appeal.  I think their resources would be better spent investigating complaints against health care providers.

Reason # 3: The Streisand Effect might actually result in some public education

An often-unforseen consequence of seeking the assistance of courts is that your dirty laundry can become very public, especially as you get to appeals courts, whose decisions are often published and picked up by the media.  The court’s decision will serve to remind the public about the finding by the HCCC against the AVN.  Remember, the court did not say that what the HCCC said was factually wrong.  It just said that the HCCC didn’t have the authority to say anything about the AVN.

The few examples of media reports that I have found seem to be fairly accurate.  They all repeat the HCCC’s finding that the AVN was misleading, and a couple say that the AVN is a danger to public health.  Most seem to accurately report that the court’s conclusion was only that the HCCC didn’t have the authority to issue the statement, not that the HCCC’s conclusions were inaccurate in any way.  The Sydney Morning Herald article even starts and ends with strong statements about the AVN’s nonsense and the resulting danger to public health.

Overall, I think–or maybe I’m just hoping here–that the court decision will only serve to impress upon the public that the AVN is not to be trusted.

On the other hand, doctors, scientists, skeptics, and public health officials ought to be careful about talking about the AVN too much, lest they inadvertently lead the public to the misleading information.

Reason # 4: AVN still can’t raise funds

Perhaps most importantly, the court declined to enter any order affecting the OLGR’s revocation of AVN’s license to raise funds.  (A personal appeal on a grammatical pet peeve of mine: please avoid using the “word” fundraise.)  The OLGR’s database shows that AVN’s license is still “expired,” so AVN can’t legally raise funds.  And it can’t accept any new members.  That might stop it from doing anything too bad.  It’s website seems to have been updated last in 2010 (except for what appear to be automatic displays of tweets), and the “News” page only has news up to 2008.

Other commentary on the decision

Thanks to The Drunken Madman, Jason Brown (Twitter: @drunkenmadman), for leading me to the decision itself so that I could read it.  The decision itself was posted by Dave the Happy Singer before the court posted it.  Both of their posts are definitely worth reading.

I was happy to see that another post by The Drunken Madman pointed to a portion of the decision that caused me to chuckle.  The decision basically said that there was no evidence that, as hard as the AVN tried, there was no evidence that it was successful in changing anyone’s mind about vaccination.

Lastly, if you want to keep up with this, The Drunken Madman (he really has to cut down on his bad habits) has started a wiki of info relating to the decision.

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Can parents be liable for falsifying vaccination records?

Todd W. of Harpocrates Speaks asked me and Popehat (my favorite law-related blog) to comment on a heartwarming story that he posted on his blog. Popehat said that it wasn’t his area of law, and that he’d have to research it. Unlike Popehat, I have no qualms about recklessly stabbing in the dark to come up with comments on something in which I have little expertise and on which I have done little research. To be fair to myself, though, I actually have some expertise in child abuse and neglect, and I currently work in a position where I deal with a very wide variety of legal topics.

So the story goes like this: A couple of months ago, at a day care far, far away (Todd does not say where), four children came down with chicken pox. Three of the children were above the age for vaccination, and one 6-month-old child, too young to be vaccinated, also came down with the disease. Two women on the staff at the daycare were pregnant, putting them and their unborn children at risk, especially since one of them did not know if she had been vaccinated against the disease.

Apparently, the day care required that all children be immunized, and the parents of the infected children had reported that the children were immunized, even providing documentation of the vaccinations. Todd says that the parents “faked” the vaccination records of their children to get them into the daycare, and that the daycare was not too careful about verifying the records.

A commenter then asked, “Could there be some kind of legal action taken against the parents who faked the immunization record?” We’ll take a look at criminal and civil liability here. I’m going to limit my answer to the question that was asked, which focuses on the faked immunization record. For an examination of the possible liability that parents face for failing to immunize their child if the child then gets sick and infects someone else, see Jann Bellamy’s post on Science-Based Medicine a year and a half ago.

Because laws differ from state to state in the U.S., I’m going to have to discuss this very generally, especially since Todd wouldn’t say where the day care was. Lawyers reading this will probably be saying to themselves, or shouting out loud, “No! Wrong! That’s not the whole story!” I know; I’m trying to simplify things here. As always, don’t take what I’m saying as legal advice.  If you face a similar situation yourself, go see a lawyer.

Civil Claims

The tort, or private/civil wrong, that the parents may be liable for is intentional misrepresentation or fraud. To win a case for intentional misrepresentation or fraud, the plaintiff basically has to prove that the defendant knowingly made a false statement for the purpose of getting the listener/reader of the statement to rely on it, that the listener/reader reasonably relied on the statement, and that the listener/reader suffered some harm/injury to person or property as a result.

I think that here the day care, but not other parents or day care staff, may have a shot at winning on a fraud claim against the non-vaccinating parents. The facts that we have say that the parents knowingly made false statements–the false documents showing vaccination–to the day care that their children were vaccinated. They did it in order to have the day care accept their children into the program. If the fake documents were realistic enough, then the day care probably reasonably relied on the statements. If the day care suffers any loss as a result, they should be able to recover those damages from the parents. To tell the truth, I can’t really imagine that the day care would suffer much loss from this. Perhaps they would have to hire subs for sick workers, or will be liable to the parents of any other kids who contracted the infection, but I doubt it (for reasons that I don’t have time to get into here). The day care would not be liable in any lawsuit by its workers; workers’ compensation laws would cover any illnesses or injuries by the workers and the day care would be immune from suit by its employees.

I don’t think that the parents would have any liability to other parents for the false statements, because the parents didn’t make any statements to the other parents. They made the statements only to the day care.

I can’t think of any other basis for a lawsuit by anyone for the parents’ act of falsifying the vaccination documents. If anybody has any other ideas, I’d love to hear them.

Criminal liability

Again, it depends greatly on what state we’re in whether the parents might have committed some crime here. State laws are surprisingly different when it comes to crimes. Just for fun, I randomly picked a few states and took a quick gander (I mean a casual look, not a fast male goose; I would never steal a goose) at their criminal laws to see if there was anything I could find.

The type of crime I was looking for was fraud or criminal misrepresentation of some sort, perhaps including forgery offenses. I’m sure that the vaccination documents are not sworn, so I didn’t bother to check for perjury offenses.

New York, in section175.05 of its penal law, defines the crime of “falsifying business records in the second degree” to include when a person, “with intent to defraud . . . [m]akes or causes a false entry in the business records of an enterprise.” From the definitions earlier in the penal law, I think the day care would be an “enterprise,” and I think the parents might be liable for “causing” the false entry in the day care’s records.

I couldn’t quickly find any applicable fraud crime in Illinois.  All of the Illinois fraud crimes that I could find involve financial fraud.

Colorado Revised Statues section 18-5-104 says,”A person commits second degree forgery if, with intent to defraud, such person falsely makes, completes, alters, or utters a written instrument” that is not specifically covered by statutes defining other kids of fraud.

The New York and Colorado statutes could be used to prosecute parents who falsify vaccination records.  In other states, like Illinois, there may be no law that specifically prohibits falsifying that kind of document.

I’d be surprised if any prosecuting attorney would take this kind of case.  I could not find any news article of a parent being charged for fraud involving a vaccination record.

Conclusion

As much as I hate to say it, it appears unlikely that the parents who falsified the vaccination records will face any real legal consequences from their fraud.  I can only hope that some brave prosecutor realizes the risk to public health that these parents created and charges the parents accordingly–if they live in a state that has laws that prohibit this kind of fraud in the first place.

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