Vaccines and Autism: Can the Causal Link Be Proven in Law?
In my blog post yesterday, I talked about the difference between legal evidence and scientific evidence. It is disconcerting that a CNN poll revealed today that 71% of the public believes that vaccines cause autism, despite no scientific evidence to support the link. It seems that entertainment and sensationalism without fact still guide decisions and belief. I strongly urge Larry King to put on his program a number of autistic individuals from Autistic Self Advocacy Network, ANI, AutCom and The Autism Acceptance Project to balance the story and separate fact from fiction.
In keeping, I had my step-daughter, a first-year law student, prepare for you a synopsis of how something has to be proved in a private/civil law matter. I hope it helps further the discussion of the difference between scientific fact and legal "evidence," in the matter of vaccine injury:
Vaccines and Autism: Can the Causal Link be Proven in Law?
Serena Wolfond, L.L.B. Candidate 2010
In order to prove that the MMR vaccination causes autism it must be apparent: (a) that but for the administration of the vaccination, autism would not be present, and (b) that (a) is true on a balance of probabilities (i.e. that it is more likely true than not true).
Part (a) is known as the “But For” test for causation and is the standard test for proving causation of harm in private or civil liability cases (as distinguished from criminal cases). Applied to the question of vaccines causing autism, the But For test requires the party alleging the link between the two to indicate that but for receiving the MMR vaccination, autistic individuals would not be autistic.
Of course it is arguable that multiple contributing factors either together or independently lead to a certain effect. Accordingly, if it is impossible (for reasons such as the lack of conclusive scientific data) to prove causation using the But For test, a more relaxed test for causation, referred to as the “Material Contribution” test, may be employed. The Material Contribution test maintains that if more than one factor materially contributes to some outcome, then both causes will be found legally accountable. This test would require proof that the vaccine at least significantly magnifies the probability of an individual becoming autistic.
Part (b) requires that any claim that the vaccine causes autism under part (a) is subject to the burden of proof. The standard of proof in private/ civil law matters is placed upon the plaintiff (the party claiming connection). The standard of proof the plaintiff must meet is proof on a “balance of probabilities”. In practice, this means that the party alleging that the vaccine causes autism (according either to the But For or to the Material Contribution test) must demonstrate that this claim is more likely true than not true (literally, that the likelihood of it being true is at least 51%). This private/ civil law standard of proof differs from that in criminal law, where proof is required “beyond a reasonable doubt”. However, it remains severely inadequate to claim that the vaccine may cause autism, or that there is a mere correlation between the two.
To presume or infer that the vaccine is the cause of autism simply because there is a correlation between the time that the vaccine is administered and the onset of autistic behaviours is either to commit the legal error of shifting the evidentiary burden to the defendant (here, physicians or drug manufacturers) and calling upon them to prove that the vaccines do not cause autism. Or, to appeal to the doctrine of Res ipsa Loquitur, (a Latin phrase meaning “the thing speaks for itself”) which essentially carries the inference that some fact is true, though it must still be proven. Today this type of evidence is discarded by courts.
In keeping, I had my step-daughter, a first-year law student, prepare for you a synopsis of how something has to be proved in a private/civil law matter. I hope it helps further the discussion of the difference between scientific fact and legal "evidence," in the matter of vaccine injury:
Vaccines and Autism: Can the Causal Link be Proven in Law?
Serena Wolfond, L.L.B. Candidate 2010
In order to prove that the MMR vaccination causes autism it must be apparent: (a) that but for the administration of the vaccination, autism would not be present, and (b) that (a) is true on a balance of probabilities (i.e. that it is more likely true than not true).
Part (a) is known as the “But For” test for causation and is the standard test for proving causation of harm in private or civil liability cases (as distinguished from criminal cases). Applied to the question of vaccines causing autism, the But For test requires the party alleging the link between the two to indicate that but for receiving the MMR vaccination, autistic individuals would not be autistic.
Of course it is arguable that multiple contributing factors either together or independently lead to a certain effect. Accordingly, if it is impossible (for reasons such as the lack of conclusive scientific data) to prove causation using the But For test, a more relaxed test for causation, referred to as the “Material Contribution” test, may be employed. The Material Contribution test maintains that if more than one factor materially contributes to some outcome, then both causes will be found legally accountable. This test would require proof that the vaccine at least significantly magnifies the probability of an individual becoming autistic.
Part (b) requires that any claim that the vaccine causes autism under part (a) is subject to the burden of proof. The standard of proof in private/ civil law matters is placed upon the plaintiff (the party claiming connection). The standard of proof the plaintiff must meet is proof on a “balance of probabilities”. In practice, this means that the party alleging that the vaccine causes autism (according either to the But For or to the Material Contribution test) must demonstrate that this claim is more likely true than not true (literally, that the likelihood of it being true is at least 51%). This private/ civil law standard of proof differs from that in criminal law, where proof is required “beyond a reasonable doubt”. However, it remains severely inadequate to claim that the vaccine may cause autism, or that there is a mere correlation between the two.
To presume or infer that the vaccine is the cause of autism simply because there is a correlation between the time that the vaccine is administered and the onset of autistic behaviours is either to commit the legal error of shifting the evidentiary burden to the defendant (here, physicians or drug manufacturers) and calling upon them to prove that the vaccines do not cause autism. Or, to appeal to the doctrine of Res ipsa Loquitur, (a Latin phrase meaning “the thing speaks for itself”) which essentially carries the inference that some fact is true, though it must still be proven. Today this type of evidence is discarded by courts.
5 Comments:
Bravo Selena! An excellent summary of the issue(s) at hand. Beliefs, true or false, are perpetuated when the media reports disproportionately on what is popular and widely held to be fact at the expense of other viewpoints which may have validity.
Thank you for challenging this non-sensical trend.
David Hill
Hi Estee!
You wrote: "A CNN poll revealed today that 71% of the public believes that vaccines cause autism, despite no scientific evidence to support the link."
I just wanted to make it clear that the "poll" was not scientific, in the sense of a random selection of individuals asked carefully formatted questions.
It was a simple, click "yes/no" poll on Larry King's website, which had been highly promoted on some anti-vaccinationist sites.
It also had no controls on the number of times an individual could vote.
I voted "no" 12 times.
Keep up advocating for us families!!
Recently discovered your blog, and love it.
john
"no scientific evidence to support the link"? I don't know where you are getting your information, but there is tons of evidence to support that there is a link. As far as the survey - how many of those polled were parents? The reason I ask, is that we tend to be far more educated about the issue than the general public.
As a parent, one thing I do know is that up until a few years ago, ALL vaccines included Thimersol, which is 51% mercury by volume. Then of course there was the 'voluntary' recall. Unfortunately, these vaccines were sold by the gross, so there is no way to know how many are left still with Thimersol.
Now we are told to avoid mercury in tuna, take them out of our fillings, but we can give 1,000 times more mercury than is recommended to still be safe - to infants/babies. No link? Puh-lease.
Also, the number of vaccines given to children over the course of their lives has gone up to around 20 before the age of 12. And they are given to all children, at the same dose regardless of their weight, illnesses or vulnerabilities. My son was born 6 weeks early to a mother who was very ill and was very small. He got the same vaccines that my daughter got, even though she was bigger, went to full term and was born when I was healthy.
So is there a direct link? Or maybe it's the fact that we simply give too many vaccines. Or possibly they should not be given in a one size fits all manner. The evidence is mounting - isn't it worth thorough, unbiased research, (i.e. no pharmaceutical influence at all)?
First off, anonymous, it's hard to "prove" if you remain hidden behind a screen. It's hard to take such a comment seriously. If you have evidence to your "resolute" statement, please provide your peer reviewed citations here. What "evidence" are you referring to? Whose?
Mercury preservative was taken out of vaccines. Autism numbers are still rising. People who did not receive vaccinations are also autistic. Considering we have had autism in the DSM IV only since 1993, and adults are also being diagnosed, it sure makes a good case for accounting for the rising numbers. Five years ago, even, a doctor would have not been familiar with autism. They were not with my son who is turning 6. The only way we identified him was through other parents.
Good starting point reads are Dr. Morton Ann Gernsbacher's papers, Dr. Richard Roy Grinker's book Unstrange Minds, and scientific study on thimerosal and autism under Dr. Eric Fonbonne -- that would just be a beginning.
If you are going to make a claim, do so out front and cite your peer reviewed scientific research studies clearly.
I think we've had enough of religious-like fundamentalism in this field. Our children and autistic individuals of all ages deserve so much more than belief and speculation. I am in support of eliminating speculation and theories (or proving them) with science, but we have no proof except proof of the opposite of what you claim.
The burden of proof, as a result of false or unproven claims, is upon autistics who have to continually exhibit their worthiness in a society that is resolute, it seems, on finding an outside cause rather than accepting and making the changes required to enable autistic individuals to succeed. I do not want one to come at the cost of the other, but take a look at what we fund in our research -- the balance is WAY out of whack.
We know first-hand in this house, how Adam is valued, or pitied, as a result of false marketing by organizations such as DAN!, TACA, Cure Autism Now and even Autism Speaks. The science has said numerous times now, that we can find no link. Why is it that we spend so much money on proving that wrong instead of moving on here? No, instead people listen to celebrities on Larry King. I always dread his programs on autism that never reflect the views of hundreds of autistic individuals who do not belong to Autism Speaks or TACA or DAN! spokespeople.
As far as we are concerned, this family wishes more money to be spent on educational accommodation, teaching of the educators, and providing the right tools and environments that allow autistic individuals to learn well.
I would like to see more money and permission for family appointed shadows in every setting as a right,and not have to defer to public school appointed, "educational assistants" who are strained and can never advocate for my son to the extent a family appointed shadow can.
I would like to see more funds into lowering the cost of AAC (technological) devices that integrate icons and qwerty boards and are adaptable for an individuals communication style. Since demand is so low they cost way too much money! Imagine how many users there would be if we just put them in the hands of individuals who need them and train SLP's to help autistic children use them!
I could go on. The list is long, but ultimately, what I wish to see is a better world for our children. A place where their idiosyncratic way of communicating and behaving are valued as real literacy. Where the challenges are not pitied, but respected. It gets really awful being pitied or heroized. That is outright devaluation -- or arms-length relating.
We want a world where people understand what autistic people really do have to offer, no matter what level of "disability" they are categorized under.
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