Recently, the regional health Department, regional Department of education and science and the regional laboratory center of the Ministry of health of Ukraine issued a joint order “On measures to prevent the spread of disease measles in children’s (educational) educational institutions of the Odessa region.
This order approved the procedure of interaction between institutions of education and health issues a visit to the children’s educational establishments (educational institutions) children who have not received immunizations according to the calendar.
Directors of regional educational institutions ordered, and municipal municipal – recommended: to execute the algorithm to provide non-admission of unvaccinated children to determine risk groups among educators and to organize their vaccination against measles for epidotization.
In accordance with the algorithm, doctors and teachers should review vaccination records of children to identify those who do not have vaccinations, and direct them to the medical consultation Commission (MCC). WCC makes a decision about the possibility of attending school. If it does not permit the child to school, according to the algorithm, refer to local education authority which decides on the form of learning for each child separately.
Apparently, this joint order is an attempt to respond to the situation with measles. Since the beginning of the year in Ukraine the disease has infected more than 12 thousand people. The Ministry of health was going to declare the measles epidemic, however, the Cabinet to make such a decision refused. In Odessa, the situation is calmer since the beginning of the year recorded 142 cases of measles.
New order – not the first attempt to close schools and kindergartens for unvaccinated children. A year ago this decision was made by the municipal Commission on technogenic and ecological safety (TEB), which resulted in lawsuits, which are discussed so far. So we asked to comment on the situation of the lawyer Ksenia Dobrova, which is in the courts the interests of the parents of an unvaccinated child.
“To begin with, this joint order has no legal force in the part which concerns the right of children to attend school. In article 2 of the law of Ukraine “On education” (which, incidentally, referenced in the order) clearly States: “Letters, instructions, guidelines, other documents of Executive bodies, except for orders registered with the Ministry of justice of Ukraine,… are not legal acts and are unable to set legal norms”. I see a joint order from 28.01.2019 registration in bodies of justice did not pass and should not be used for artists guide to action.
In addition, pay attention that according to article 11 and article 55 law of Ukraine “On education”, the parents choose the form of preschool and school education of their children. To limit this right to prescribe to parents what kind of action, especially unregistered in the prescribed manner by the order is illegal,” – said Ksenia Dobrov.
According to counsel, what is happening now is the result of ill-considered reform of public bodies. A few years ago by the decision of the Cabinet was eliminated the system of sanitary-epidemiological service. Of its powers handed to Hospitible, led by very far from health, the Ministry of agrarian policy, and part of, including the issues of combating epidemics, is simply “hung in the air.” Now these functions does not perform one.
“Under the law “On ensuring sanitary and epidemiological welfare of population”, Director of the school or kindergarten may remove the child from class only on the proposal of the chief state sanitary doctor. Glavassevich, and he alone, can make decisions about carrying out additional vaccinations, particularly for teachers. The problem is that the chief state sanitary doctors in the Ukraine for several years simply does not exist. Therefore, all decisions in this area is illegal, because the accepted bodies that do not have such authority. And given the country’s lack of sanitary-epidemiological service, a big question is the validity, appropriateness and effectiveness of all such decisions”, – says Ksenia Dobrov.
According to the lawyer, all documents of regional and city institutions on this issue have no legal force. Therefore, all Directors of schools and kindergartens will be done on the basis of this order, they will do solely at your own risk and under their sole responsibility. Legal grounds for refusing entry if the child will not admit to class is the arbitrariness, the article 356 of criminal code of Ukraine.
So, according to Dobrova, yesterday opened criminal proceedings against the Director of a kindergarten from the Ovidiopolsky area, which did not allow an unvaccinated child to attend school.
Kseniya also spoke about the ongoing judicial proceedings on last year’s ban. We will remind, in January of 2018 the city Commission of technogenic and ecological safety (TEB) found that the situation with measles in Odessa disadvantaged, and decided not to allow unvaccinated children in schools and kindergartens.
The result of Irina, the mother of an unvaccinated child, was forced to temporarily leave the job and stay with my son at home. She asked the court to cancel the decision of the Commission and letters to the city Department of education, under which her child was not allowed into kindergarten.
“Immediately after the appeal to the court of the Commission of TEB suddenly changed the opinion, – says Irina. – Epidemiological situation in Odessa suddenly became “safe”. The previous decision of the Commission was canceled, and son again started in kindergarten. All hoped that the incident is settled, but the claim I revoke is not.
I have refused vaccinations for their child deliberately, because they know that they can be bad for his health. So I want to bring this issue to the end, not to sit in constant anticipation of the next dirty trick or illegal decisions”, – said Irina.
Courts on this issue several lawsuits. Thus, the court of first instance found that letters to the city Department of education is a document that informs the addressees only and does not create legal consequences, so it is impossible to appeal. As for the Commission’s decision, the court decided that it is already canceled, and therefore no rights and interests of the plaintiff were not violated.
According to counsel Dobrova, another decision on this issue, in fact, created a new legal reality. The court without any reason took away the legal authority of the chief state sanitary doctor (a government official) and referred them to the city Commission of TEB (a collegiate body of local government). This year these powers decided to steal the two departments of the state administration and single state Agency that issued a joint order. Apparently without the courts here will not be missed.
Now the question considering the cassation court. According to counsel, the chances of renegotiation are high. Considering similar claims in other cases, the Supreme court found that decisions about vaccinations for children (even those who have the status “mandatory”) taken by the parents and the law gives them the right to refusal and the right to choose the education for their child.
From the editor. For two years the government can not curb the long-predicted epidemic lifting of incidence by measles. There is no normal work in the foci of infection, is not carried out the detection and isolation of contact persons. there is no one to carry out epidemiological investigation to establish the transmission channels, to identify vulnerable contributors and to develop reasonable preventive measures. Not analyzed the immune status and the effectiveness of vaccination are not detected at risk. To simply no one. Reserve hospital beds no. In many fatal cases, children with poor health were infected with measles in hospitals.
The government policy for the past two years boils down to one word – “vaccinate, vaccinate, to vaccinate”. While unplanned vaccine two years after the problem occurred and in the most unfavorable period in winter, in the midst of a flu and ORVI.
OK, measles is a childhood disease from which there is a vaccine and which dies only one case out of several thousand. And if, God forbid, will come a more dangerous infection with a high mortality rate, vaccination against which not? How the state can respond to more serious challenges?