403. The actions of the Department of Health
and the Medicines Control Agency must conform to the law. These
notes outline some of the relevant legal principles that bear
upon these agencies.
404. Administrative law governs administrative
decisions taken by public bodies. These should be reasonable,
and the procedures which they follow in arriving at decisions
should be fair. The Courts have developed the common law to devise
checks upon what might otherwise have been the runaway power of
public bodies. The Courts have insisted that administrative decisions
are subject to principles of fairness. Administrative decisions
should be lawful, rational and made in accordance with the correct
405. It is therefore possible that the failure
to systematically and sufficiently-vigorously investigate the
claims of parents may constitute irrational action, and be capable
of future successful legal challenge.
Licensing Authorities such as the MCA
406. A licensing authority such as the MCA
has a degree of freedom in deciding conditions, but it is not
a complete unfettered freedom. Illegality takes place when either
the decision contravenes or exceeds the terms of the power which
authorises the making of the decision, or where the decision pursues
an objective which is different from the purpose for which the
power to make the decision was conferred.
407. An administrative decision may be within
the strict legal scope of the powers, but it may nevertheless
constitute an unreasonable exercise of power. Instances of this
are those decisions based upon considerations which have been
given too much or too little weight.
408. Legal irrationality is also established
if a decision is made that is contrary to "substantive legitimate
expectations". The citizen has the right to require the decision-maker
to stick to a particular policy or guideline. The citizen also
has the right to challenge a decision-maker who obstinately refuses
to depart from a self-created rule or policy.
409. It is suggested that refusal to divulge
relevant information on vaccines to the partners of children believed
to have been damaged by them, on the grounds of "commercial
confidentiality", could be argued to be in breach of this
law. It is further suggested here that the implied expectation
that parents should furnish comprehensive epidemiological evidence
of how their child degenerated into autism following vaccination,
in excess (in terms of robustness) of "evidence" that
the DoH, the MCA and the CSM collect to the contrary, is unnecessarily
onerous, and could therefore be unlawful.
Law of Procedural Fairness
410. The law of procedural fairness offers
the right of the citizen to fair treatment when a public authority
considers a matter which affects him/her and makes a decision,
or fails to do so. Decisions must be reached in accordance with
the rules of natural justice. The person making a decision must
be unbiased, and the right of those affected by a decision to
be given a proper opportunity to be heard on the matter is upheld
by these laws.
411. The law of procedural fairness involves
the right to be consulted, and also involves rules which require
the decision-maker to always be prepared to listen to someone
with something new to say. This is known as the rule not to fetter
discretion. In this, the decision-maker must also be impartial.
Again, it is suggested that the law may have been broken, by the
Department not properly listening to parents' concerns.
412. A decision whether or not to properly
investigate degeneration into autism after vaccination should
be fair-minded. If a decision-maker (in this case the Department
of Health) gives inadequate or excessive weight to factors when
the decision is made, or is improperly motivated, or influenced
by evidence which should have been excluded, the decision will
be unreasonable. The law requires a proper connection between
the evidence that influences the decision and the decision ultimately
made. A decision that is made arbitrarily will be irrational.
413. It is suggested that the prevailing
attitude at the Department of Health towards degeneration into
autism could fall into the "arbitrary" category, by
being dismissive of evidence, including systematic anecdotal evidence,
submitted by parents.
Law of Unreasonable Exercise of Power
414. The law of unreasonable exercise of
power also requires that like cases are treated alike. This is
part of the ancient legal duties of equality of treatment. All
persons in a similar position should be treated similarly.
415. This clearly has not been done when
the cases of suspected degeneration into autism following MMR
vaccination are compared with the cases of suspected Gulf War
Syndrome. It is clear that the attitude towards children with
autism has been wanting. In particular, there has been the failure
to actively seek out such cases.
416. In administrative law, illegality takes
place when a public body reaches a decision in pursuit of an objective
which is different from the purposes for which the power to make
the decision was conferred in the first place. Even discretionary
powers are subject to important implied limitations set by the
417. A public authority such as the Department
of Health must pursue legitimate purposes and take into account
relevant considerations. These could include the duty to eradicate
measles, but would also include the duty to properly investigate
reported adverse reactions to measles and MMR vaccines.
418. Even contractual matters such as the
contracts between the Department of Health and the manufacturers
of vaccines, can be open to judicial review, for example in connection
with the refusal by the Department to divulge the reasons for
a vaccine being withdrawn on the basis of commercial confidentiality.
419. The principle that is upheld by the
law is that public authorities have been established to be the
servants of citizens, not their masters. Therefore, it is suggested
that excessive regard for the Department's own interests, or for
commercial interests, against the interests of children believed
to have been damaged by vaccination, could be subject to future
Footnote: the above notes have been compiled
from published sources. They were published in relation to other
Government functions, but their underlying principles could apply
equally to health.