Letter to Ontario's Chief Medical Health Officer

November 24, 1999
Overnight Courier
Dr. Colin O. D’Cunha, MBBS, MHSc, FRCPC
Director, Public Health Branch and
Chief Medical Officer of Health
Public Health Branch
5700 Yonge Street, 8th Floor
Toronto, Ontario
M2M 4K5
Dear Dr. D’Cunha:
RE: Vaccination Risk Awareness Network
We have been retained the Vaccination Risk Awareness Network (“VRAN”) to seek redress of concerns on the part of its members that the Ontario Ministry of Health has failed to ensure that Ontario citizens are adequately informed of their right to exemption from the vaccination requirements imposed by the Immunization of School Pupils Act (Ontario) and the Day Nurseries Act (Ontario).

Who are VRAN’s Members?

VRAN is a national organization. Some of VRAN’s membership is comprised of people whose children have suffered a broad spectrum of vaccine reactions, permanent neurological disabilities, and including death from vaccine reactions. Other members have done a lot of reading and research and have concluded that vaccines represent a threat to their children’s health, and have chosen not to give their children any vaccines. And still others, who are perhaps the majority of our members, are people who have either fully or partially vaccinated their children, who have become very concerned with the ever increasing quantities of vaccines that are being added to the infant and young child schedules. They have been researching and gathering information about the long term health risks and immune system impairment associated with vaccines, and have decided to discontinue vaccinating their children. These people have concluded that the risks vaccines pose outweigh the benefits.
VRAN also has a growing membership of health care practitioners, both physicians and practitioners of alternative medicine, who support its mandate to provide parents and legal guardians with full disclosure of the risks associated with any vaccine before the decision to vaccinate is made.

Legal Available Exemptions to Mandatory Immunization

Both the Immunization of School Pupils Act (section 3) and the Day Nurseries Act (section 33 of Regulation 262 issued under the Act) extend to parents the legal right to exempt their children from otherwise mandatory vaccinations. These exemptions are available:

• * on medical grounds, because vaccination may be detrimental to the child or because the child has evidence of immunity;
• * on grounds of conscience or religious beliefs.

Legal Requirements for Informed Consent to Vaccination

By law, parents and legal guardians of children are entitled to full disclosure of the availability of these exemptions – an alternative to vaccination – as an integral component of the process of securing their informed consent.
Section 38(2) of the Health Protection and Promotion Act provides:

If consent to the administration of an immunizing agent has been given in accordance with the Health Care Consent Act, 1996, the physician or other person authorized to administer the immunizing agent shall cause the person who is given consent to be informed of the importance of reporting to a physician forthwith any reaction that might be a reportable event.

Sections 1(b) and (d), 10(1) and 11 of the Health Care Consent Act, 1996 provide, in turn, that:
1. The Purposes of this Act are,

• (b) to facilitate treatment, admission to care facilities, and personal assistance services, for persons lacking the capacity to make decisions about such matters;
• (d) to promote communication and understanding between health practitioners and their patients or clients; …

10.(1) A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,

• (a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; …

11.(1) The following are the elements required for consent to treatment:

1. The consent must relate to the treatment.
2. The consent must be informed.
3. The consent must be given voluntarily.
4. The consent must not be obtained through misrepresentation or fraud.

(2) A consent to treatment is informed if, before giving it,

• (a) the person received the information about the matters set out in subsection (3) that a reasonable person in the same circumstances would require in order to make a decision about the treatment; and
• (b) the person received responses to his or her requests for additional information about those matters.

(3) The matters referred to in subsection 92) are:

1. The nature of the treatment.
2. The expected benefits of the treatment.
3. The material risks of the treatment.
4. The material side effects of the treatment.
5. Alternative courses of action.
6. The likely consequences of not having the treatment. [Emphasis added.]

Role of the Ministry of Health

Although individual physicians are responsible for providing parents and legal guardians of children who may be vaccinated with the necessary information to secure their informed consent, the Ministry of Health has an independent public duty (and, arguably, a private law of duty of care) to ensure that physicians and patients are fully informed of the availability of exemptions to vaccination requirements in Ontario.
These duties flow from sections 2, 7(1) and 8 of the Health Protection and Promotion Act, from the Ministry’s clear pro-vaccination policy and stated vaccine coverage targets as set out in its Mandatory Health Programs and Services Guidelines (December, 1997), and from paragraphs 5 and 8(a) of the Requirements and Standards set out in the Mandatory Health Programs and Services Guidelines (all reproduced in their entirety in Appendix A to this letter).
Pursuant to its pro-vaccination policy and the leadership it has assumed as reflected in the Mandatory Health Programs and Services Guidelines, the Ministry has published a number of forms, information sheets and pamphlets to inform parents and legal guardians of vaccination requirements for their children. Often, these are reproduced by individual health units, school boards, principals of schools, physicians and healthcare providers throughout the Province. They are also used by those other organizations and individuals as the basis for supplemental educational material, including the dissemination of information about vaccination requirements through the media.
Despite the existence of clear statutory exemptions to otherwise mandatory vaccination requirements in Ontario, the following Ministry of Health publications provide either insufficient or no information regarding their availability:
Mandatory Health Programs and Services Guidelines;
“Immunization Programs – Questionnaire”;
“Immunization Programs – Questionnaire Consent Form”;
– the series of publications entitled “Immunization Facts” for the following illnesses (available in hard copy from public health units and on the Ministry of Health website):

• Pertussis, Diphtheria, Tetanus and Polio (cPDT Polio) Vaccine;
• Pertussis, Diphtheria, Tetanus, Polio and Infant Haemophilus type B (cPDT Polio + Hib) Vaccine;
• Infant Haemophilus type B (Hib) Vaccine
• Inactivated Polio Vaccine (IPV);
• Measles, Mumps and Rubella (MMR) Vaccine;
• Tetanus and Diphtheria (Td) Vaccine;
• Tetanus, Diphtheria and Polio (Td Polio) Vaccine; and

Information Sheet entitled “Immunization – Your Best Protection”.
The second and third documents “Immunization Programs – Questionnaire” and “Immunization Programs – Questionnaire/Consent Form” (copies enclosed) are particularly misleading. A statement close to the top of each document alludes to the existence of exemptions from immunization for medical, religious or conscience reasons. A statement at the bottom, in bold faced type and surrounded by a heavy black border – drawing attention to the significance of its contents – directly contradicts this information with the following incorrect statement: “Students must be adequately immunized to attend school”.
Predictably, omissions in the Ministry of Health publications lead to inadequate communication to parents and legal guardians by individual health units, school boards and principals. For example:

1. the City of Toronto Public Health Department circulates (and otherwise makes reference to) a publication of the Canadian Paediatrics Society entitled Your Best Shot which, in its section entitled “Choosing not to Vaccinate” provides no information regarding the availability of legal exemptions to otherwise mandatory vaccination requirements;
2. the March 8, 1999, March 26, 1999 and June 4, 1999 issues of the Principal’s Newsletter from the Regal Road School reproduce a document from the Toronto Public Health Department entitled “An Important Message for Parents” which states that “… it is the law for all children attending schools in Ontario to be properly immunized” without providing any information about the availability of legal exemptions to otherwise mandatory vaccination requirements;
3. in a recent statement in the media, a member of the Toronto Public Health Department is reported to have stated that “legally, students must be vaccinated for Tetanus, Diphtheria, Polio, Measles, Mumps and Rubella” (see “3,800 pupils facing suspension over Health form” published in The Toronto Star on May 28, 1999; copy enclosed).

Remedy Sought

To redress its very serious concern that the Ontario Ministry of Health is failing in its duty to adequately inform parents and legal guardians of the availability by statute of exemptions to otherwise mandatory vaccination requirements, VRAN seeks:

1. amendment of all publications and other information disseminated by the Ontario Ministry of Health regarding vaccination requirements to provide information about the availability of statutory exemptions to vaccination requirements that is accurate, comprehensive, easily understood, unambiguous and readily noticeable;
2. issuance of a direction (i.e., by letter or informal guideline) under your name as Chief Medical Officer of Health to all medical officers of health in the Province, requiring that they take immediate steps to ensure that their own publications and information regarding vaccination requirements and those of all school boards and schools within their territory, provide information about the availability of statutory exemptions to vaccination requirements that is accurate, comprehensive, easily understood, unambiguous and readily noticeable;
3. design and implementation of an effective strategy to communicate accurate and comprehensive information as to the availability of statutory exemptions to vaccination requirements to all family physicians and paediatricians in Ontario;
4. inclusion in the Mandatory Health Programs and Services Guidelines issued pursuant to section 7 of Health Protection and Promotion Act of a clear requirement that all publications and other information disseminated by boards of health regarding vaccination requirements provide information that is about the availability of statutory exemptions to vaccination requirements which is accurate, comprehensive, easily understood, unambiguous and readily noticeable; and
5. amendment of section 38(2) of the Health Protection and Promotion Act to expressly require that physicians (and other persons authorized to administer immunization agents) and school principals advise parents and legal guardians of the availability of statutory exemptions to vaccination requirements and of the process of securing their informed consent as (such an amendment may be analogized to section 22(7) of that Act which provides that an order by the medical of health under section 22 “is not effective unless the reasons for the order are set in the order” and other comparable sections in the Act).

It is essential, of course, that this information be included in all publications directed to parents and legal guardians of newborns and infants, and not just to parents and legal guardians of school-aged children as it is in the first year of life that these difficult decisions are made.
VRAN would be pleased to engage in further discussion with you regarding its concerns and proposed redress of those concerns as set out above. We look forward to hearing from you promptly in that regard.
I anticipate that individual members of VRAN may be corresponding directly with the Minister of Health in relation to the same concerns I have set out above.
Yours very truly,
L. Stoltz
Goodman and Carr
Barristers and Solicitors
Toronto, Ontario
To read the response from Dr. Colin O. D’Cunha, Director, Public Health Branch and Chief Medical Officer of Health (Jan. 10, 2000) to Lori Stoltz, representing VRAN click here (pdf).
To read the response from Minister of Health Elizabeth Witmer (May 8, 2000) to VRAN’s letter to her re: Dr. D’Cunha’s reply click here (pdf).