Honorary Secretary of The Association of Parents of Vaccine Damaged Children, Writes:
'Just imagine that in 1962 you have been blessed with a happy, healthy baby daughter and that overnight she is transformed into one that could never be normal and who suffers permanent mental handicap and convulsions. Then as you sought explanations and challenged the Government's refusal of compensation, you were warned that you were damaging the vaccine programme and told to keep quiet. How, in that deferential age, would any woman react? Rosemary Fox refused to condone this lamentable ethos, defied convention and began a campaign for compensation.'
Rt. Hon. Lord Ashley of Stoke, C.H.
History of the UK Campaign for Vaccine Damaged Children
On 31st January 1974 Jack Ashley MP, (later to become Lord Ashley of Stoke) made an historic speech in the House of Commons about children who had been damaged by routine immunisation programmes. It was historic because, although such damage had been recorded for at least 50 years, no Government had ever thought it necessary either to tell parents about the risk to some of their children, or to make some special provision for those who suffered damage as a result. Supporting Jack Ashley's speech in the House of Commons was a group of nearly 300 families (later to increase to 630) who formed The Association of Parents of Vaccine Damaged Children (The Association) to campaign for recognition of the sacrifice their children had made in the interests of public health, and to look for some special provision for them. Supporting Jack Ashley also were many Members of Parliament representing the families concerned. The Association's "Case for Compensation", which told of the tragedy which had befallen them and their children, had been widely distributed to Ministers and Members of Parliament. Their demands were simple - they wanted an acknowledgment that vaccination caused the damage to their healthy children and special provision over and above the existing State provision to enable them to provide a better standard of care.
The Royal Commission
Disquiet about thalidomide children at the time had resulted in the setting up of the Royal Commission on Civil Liability and Compensation for Personal Injury (Pearson) . The Association gave evidence to the Royal Commission about the need for special provision for vaccine damage. Their arguments were strongly supported by the leading Medical Associations and Royal Colleges involved in the study, following which the Commission recommended that "The Government should be strictly liable in tort for severe damage suffered by anyone as a result of vaccination recommended in the interests of the community". Liability in tort envisaged a settlement by the Court and generally covered cases claiming negligence but Pearson suggested that those who could show "on the balance of probabilities" that vaccination caused their damage should be entitled to compensation and subject to "these matters of causation and fact" there should be no defences.
Following the Royal Commission enquiry The Health Service Ombudsman also became involved when The Association reported complaints from a few parents whose children were wrongly immunised that they were not given enough information to make an informed choice and following a detailed study the Ombudsman issued a report confirming that the Department of Health had to"accept a large measure of responsibility .. for not recognising earlier the desirability of alerting parents, as they had now done." It was after this that leaflets giving parents details of the vaccines they were being offered for their children, with some reference to possible risk factors, began to be routinely available. Three vital components of the campaign led to the Government decision to make some recompense to vaccine damaged children for the injuries they had suffered in the interests of public health -
1) Jack Ashley's Parliamentary Campaign Speech on 31 January 1974
2) The Report of the Parliamentary Commissioner for Administration (the Ombudsman) in October 1977 confirming the responsibility of the Department of Health for the proper organisation of immunisation
3) The Report of the Royal Commission on Civil Liability and Compensation for Personal Injury in March 1978.
The Vaccine Damage Payment Act 1979
Having considered all these reports the Government agreed that some recompense was due to vaccine damaged children. They set up "The Vaccine Damage Payment Scheme" in 1978 which was followed by the Vaccine Damage Payment Act in 1979 to pay £10,000 to each vaccine damaged child who had been damaged to the extent of 80%, claims had to be made within 6 years in order to qualify. The then Secretary of State David Ennals said while announcing the Act that "this was not the end" which provided the basis for an ongoing campaign for better provision, which was to last for 21 years until June 2000.
The very long delay from February 1979 to June 2000 in getting the payment increased was due to the Conservative Government's statement after their election in 1979 that all disabled people should be treated equally, whether - as they said - they were damaged by vaccination or damaged by disease because they had not been vaccinated. It was obvious from such a statement that Conservative Ministers understood little about the principles involved or the need to accept responsibility for injuries resulting from the health programmes which the State promoted. In addition to providing time for continuous letter lobbies to Members of Parliament, a number of whom made direct representations to the Government, the 21-year delay provided time for parents to look for other solutions, one of which was legal action.
A steering committee of Solicitors was set up by the parents and some Court cases went ahead, one in Ireland which was successful because there was evidence that the vaccine manufacturer (Wellcome) had distributed a batch of vaccine which was not properly tested; one in Scotland which failed and 2 at the High Court in London which not only failed but also produced the legal argument that proof of causation would be required before any legal action was likely to succeed. Since as yet no scientific formula for determining vaccine damage has been produced by medical scientists, these were the last cases to be heard. Since legal aid is no longer available for such cases [as at November 2007] there is unlikely to be any new development in the matter of compensation in the forseeable future.
The European Commission of Human Rights
Meanwhile it was thought that the European Commission of Human Rights might provide an answer and a case based on Article 2 of the European Convention - "protection of everyone's right to life" and Article 8 - "right to respect for private and family life" went to the Commission in August 1975. It was to take 3 years before the Commission replied that since there was no "intention to deprive people of their lives " Article 2 did not apply and neither did Article 8. The General Election in 1997 produced a Labour Government and gave the first hint of possible success for the parents' campaign. Frank Field MP was appointed Minister of State for Welfare Reform and in reply to an Association query he said that "the Government was well aware of the long-standing concern about vaccine damage and would examine the Payment Scheme critically in the light of these concerns". That was the breakthrough after which it was just a question of keeping up the pressure with the help of Members of Parliament.
At that very late stage one or two new campaigns began. A small group of parents who felt that The Association's Case for Compensation was not demanding enough started to talk about large lump sums of compensation for the families and annual large payments for those who were damaged, payments which they said should be made by the vaccine manufacturers as well as the Government. While such a campaign might be popular with many parents caring for their damaged children, it was important to stress that without proof of causation it would be impossible to launch any legal action and without legal action there would be little one could do to force anyone to listen to their demands. The Association was particularly concerned not to raise false hopes among parents who might be misled into thinking that large sums of compensation would be easily available. The vaccine manufacturers had been asked to help and had refused. The Government had made its offer and had no plans to increase it.
Vaccine Damage Payments
The statement from Frank Field was the breakthrough and from that statement onwards, constant letter lobbying of supporting Members of Parliament, Debates in the House of Commons and public lobbies attended by some of the parents kept pressure on the Government until finally in June 2000 Alistair Darling, Secretary of State, announced that the Payment would be increased to a total of £100,000 and would cover disability up to 60%. This would give a sum of £68,000 to those who had received the original £10,000 - the year 2000 value of which was worked out as £32,000. The office set up to deal with the payments is the Vaccine Damage Payment Unit. This office had dealt with payments under the 1979 Payment Act and has continued to deal with applications for the increased payment. Figures show that after the introduction of the increased payment there were 1020 applications, of which 362 related to claims originally refused because of the 80% disability rule and now able to claim again and 658 were new claims. The rate of success of all claims was very low - only 11 out of 753 claims succeeded and there is some evidence that the difficulty in obtaining medical records to support claims is one of the causes.
Payments are made under a Deed of Trust which sets out various examples of how the money could be spent or invested for the disabled person and the Trustees are given discretion. As most of the recipients of the Vaccine Damage Payment are in receipt of Disability, Mobility, Income Support and other allowances from their local DHSS offices, there was initial concern about how the Payment might affect these benefits. To deal with this the Vaccine Damage Payment Unit issued a leaflet for the information of the DHSS officers. This confirmed that provided the Payment was not being used to cover any of the benefits already covered by the DHSS payments, the Payment was to be ignored. This more than anything made it clear that it was a Top Up payment specifically designed to pay for anything the Parent/Trustees considered necessary to improve the life of their vaccine damaged child.
A number of the older vaccine damaged men and women (the scheme goes back to 1946) live in small community homes with caring staff and the cost of this provision can be up to £50,000 a year, including staff costs and housing costs. Families who have opted for such provision feel that there will be continuity of care and that when they die their "children" will be secure and well provided for. Where families continue to care for their vaccine damaged "child" at home they have social security payments but these would not cover extra help or respite care on anything like the scale of the provision in community homes and these parents naturally feel that they have been left to cope alone. Perhaps a more positive campaign to the Pharmaceutical Companies, whose products were after all the cause of the damage, would be to ask them to set up a Special Fund to which parents could apply for extra help, similar to the funds which are set up by various profitable businesses and corporations.
Overview of the Campaign for Vaccine Damaged Children
For the first time in the UK hundreds of parents with children disabled by vaccination had the opportunity to discuss their fears and join in action to get special provision for them. For the first time also in the UK the principle of Government liability for injuries arising from its health promotion programmes was established. The responsibility of the Health Department to provide clear information to parents about vaccination and the vaccines in use was established. Although legal liability for vaccine damage was not established the campaign provided a wealth of legal opinion and argument for use in any new attempt to investigate the possibility of such action.
The Association's campaign did not look for the large scale compensation which some parents who wanted to set up their own permanent care arrangements felt should have been included. Neither did it target the vaccine manufacturers as it was felt that this would involve a lengthy legal action the success of which would depend on proof of causation. Pharmaceutical Companies could follow the lead of other Business Organisations by setting up a fund to which parents could apply for help. Neither did the campaign seek medical accident compensation which would have required evidence of negligence in the immunisation procedure. Association parents never thought that doctors were negligent. Rather they thought that the Government should have at all times taken steps to provide against the possibility of injury arising from its vaccination programmes.
The question now is whether there is anything more which can be done by those dissatisfied with the present arrangements. Without proof of causation of vaccine damage and proof of negligence there does not seem to be any possibility of successful legal action.
For full details of the campaign for vaccine damaged children read "Helen's Story" by Rosemary Fox, published by John Blake, copies from WH Smith, Waterstones, or Amazon