Monday, August 10, 2020
Court of Appeal:
Court Retains Power to Order Vaccinations of Dependent Children
Gilbert’s Opinion Says New Statute Does Not Vest Exclusive Power in Health Authorities to Override Physician’s Certification of Exemption
By a MetNews Staff Writer
Legislation that went into effect Jan. 1 authorizing state health authorities to invalidate a physician’s certification that a school child is exempt from vaccinations that are otherwise required does not divest a juvenile court of its independent power to order such inoculations of children who are dependents of the court, the Court of Appeal for this district has held.
Presiding Justice Arthur Gilbert of Div. Six wrote the opinion, filed Thursday. It affirms an order by the Juvenile Court of the San Luis Obispo Superior Court approving vaccinations of two dependent children, S.P. and F.P., over the protest of their parents and in disregard of letters from a doctor exempting the youths “from any vaccinations.”
The doctor, Johnnie Hamm, a Pismo Beach gynecologist—who has expressed the unorthodox view that “vaccines are dangerous and unsafe”—in 2018 certified 350 children as being exempt. His fee for declaring S.P. and F.P. exempt after a cursory examination of them was $290.
The new statutory provision relied upon by the father of the dependent children, in his appeal, is Health and Safety Code §120372(d)(3)(C). It says that where a “medical exemption” certified by a doctor comes under question and is officially reviewed, “the State Public Health Officer or physician and surgeon designee may revoke the medical exemption.”
Gilbert said that the Legislature, in enacting the measure “was concerned with the public health consequences of doctors issuing improper exemptions,” elaborating:
“Section 120372 increases the number of people who have authority to revoke exemptions. It does not preclude a court from taking appropriate action where the evidence demonstrates the exemption was fraudulent or without foundation.”
“To conclude otherwise would divest the court's authority and could endanger the children's health. There is no statutory bar to preclude the juvenile court from ordering dependent children to receive medically necessary vaccinations.”
Fourth District Opinion
In finding that a court does have the power to order inoculations notwithstanding a physician’s certificate of exemption, Gilbert cited the 2003 Court of Appeal decision by Fourth District’s Div. Three in In re Christopher I. In that case—in which an order to withdraw life support from a comatose child was affirmed—Justice Richard D. Fybel wrote:
“[R]elevant provisions of the Welfare and Institutions Code illustrate the juvenile court’s authority to make all reasonable orders relating to medical treatment for a dependent child. No statute restricts that authority.”
“Because the court had inherent authority to decide whether dependent children should be vaccinated…, it necessarily had authority to decide all objections to vaccinations, including exemptions.”
There was no abuse of discretion, the presiding justice declared, in crediting the view of the children’s current pediatrician that immunizations are needed over Ham’s contrary view. He noted that Ham had failed to abide by the statutory requirement that the “the specific nature...of the medical condition” underlying the exemption be stated, and added:
“…1) Ham was not a pediatrician, 2) he was not one of the children’s current treating doctors, and 3) his 2018 letters did not include descriptions of the children’s current medical needs.
“Moreover, the juvenile court’s findings indicate that it implicitly determined Ham was not a credible witness.”
The Juvenile Court judge was entitled to take into account, in evaluating Ham’s credibility, that he had been placed on probation for 10 years by the Medical Board of California (from 2008-18) for “providing false documentation,” Gilbert noted.
The case is In re S.P., 2020 S.O.S. 3675.
Under legislation effective Jan. 1 of next year, physicians’ certificates of exemption will be required to be transmitted electronically, using a standardized form. Among the questions is whether the doctor submitting the form is the child’s primary care physician and, if not, why that person is not sending it.
The forms must be executed under penalty of perjury.
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