Public Health Law Watch
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CT Court Rules that State Cannot Vaccinate Children in its Temporary Care Without Parental Consent

By Elisabeth Ryan

The Supreme Court of Connecticut has, for the second time in three months, ruled that the state Department of Children and Families cannot vaccinate children in its custody without explicit parental consent.  News outlets have proclaimed in alarmist headlines that “State Can’t Vaccinate Kids in Temporary Custody,” but that’s untrue – Connecticut can continue to vaccinate children in its temporary custody, as long as the parents agree.  The state is not actually prohibited from vaccinating any and all children in its custody, but the decision is still concerning from a public health perspective.

In April of 2016, the Connecticut Department of Children and Families took temporary custody of two young children - ages one and two years - after their parents were arrested.  After a judicial finding of neglect, the trial court authorized an agreement between DCF and the parents that would keep the children in state custody temporarily, with an ultimate goal of reunification with the parents.  But the parties differed on one issue: whether DCF could vaccinate the young children according to its usual practice.  The parents objected to vaccinations, citing unspecified religious beliefs.  After an evidentiary hearing, the trial court ruled that DCF could vaccinate the children and that the state’s statutory vaccination requirement exemption for religious beliefs did not apply while the children were in the state's custody.

On appeal, the parents argued that DCF only has statutory authority to provide "medical treatment" to children in its custody and that vaccinations are not "medical treatment" because they are preventive, not curative.  The Supreme Court of Connecticut agreed, holding that the statutory phrase “medical treatment, including surgery, to insure the continued good health or life of the child…” was ambiguous, but that its legislative history referred to emergency medical care, which therefore excluded vaccinations. 

DCF petitioned for the court to re-consider its ruling, which it did.  On re-hearing, DCF argued that the statute it had originally – and apparently mistakenly - relied on (General Statutes § 17a-10 (c)) was not proper because it applied to minors in juvenile detention,  Rather, DCF argued that it should have should have based its case on General Statutes §§ 17a-93 and 17a-98, which “confer broader guardianship authority.”  The court last week quite bluntly rejected this request, calling it “simply…a means for giving the losing party a second chance to try a new argument.”

The concurring opinion – written by the Chief Justice and joined by 4 of her 6 colleagues – went beyond the procedural denial of relief and added that the statutes DCF urged the court to consider would likely be unconstitutional in this context, as DCF’s custody was explicitly temporary and the parents still have the right to make decisions for their children.  Further, by enacting a law allowing a religious exemption to vaccinations, the Connecticut legislature has indicated such a choice is an important public policy interest.

So even though this was a clear case of statutory interpretation, the Supreme Court of Connecticut has indicated that the case to vaccinate the children in temporary state custody would also fail on constitutional grounds, at least based on existing statutes.  The decision as it stands likely does not affect many cases and the legislature is, of course, free to strengthen public health by changing the statutory language.  The court’s indication that such a statute would be unconstitutional is much more concerning and could have larger implications, but it remains an issue that is not yet a reality.