Covid 19 vaccinations and the Court of Protection

11 July 2022

Ben McCormack

Covid 19 vaccinations have been a divisive issue during the pandemic, and with the number of patients in hospital with the virus on the rise for the third time this year, the debate around vaccinations won’t be going away any time soon.

Three recent cases of the Court of Protection show different aspects of the issues that can arise where there is a dispute as to whether a person ought to be vaccinated against Covid 19. In all cases there was evidence that the person the case was about lacked the capacity to decide whether to have the vaccine. But there was a dispute between clinicians and family about whether vaccination would be in the person’s best interests.

North Yorkshire CCG v E and others [2022] EWCOP 15

In this case Poole J was dealing with a case where Mr E had four siblings, three who were in favour of his having the vaccine but one (Ms F) who strongly opposed it.

Ms F was of the view that Mr E had sustained a brain injury when he was young as the result of having received a childhood vaccine. The judge summarised her position this way:

F was an articulate and thoughtful witness who used to be a nurse but who, for several years now, has taken a lay interest in diet, vitamins and minerals and how they can benefit health. She has had an input into the management of E’s nutrition and believes that the use of vitamins, minerals and pro-biotics can prevent the more harmful effects of Covid-19. However, she encapsulated her objection to E being administered the Covid-19 vaccine by saying that since he has once been bitten – by the pertussis vaccine causing him brain damage – why should he be offered up to be bitten again? Why take the risk of catastrophic consequences a second time? F is the closest of E’s siblings to him in age, and she urged the court to accept that had E the capacity to make the decision himself, his values and beliefs would be like hers and would lead him to elect not to be vaccinated. F had not been fully aware of the annual influenza vaccines received by E.

Ms E had sought to rely on the evidence of a Dr Eccles, who had provided a report stating the efficacy of treating Covid 19 with vitamins as opposed to vaccination. The judge refused to admit that report as expert evidence.

The judge found that Mr E was at an increased risk of suffering adverse effects from Covid 19 if he were not vaccinated. He had a history of being compliant with other vaccinations.

Poole J referred to Hayden J’s decision in SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14 and said at §37:

There is no presumption in favour of vaccination. Each case must be considered on its own facts. The relevant circumstances will include those specific to an individual’s case but also facts and matters that apply to all, such as the availability of vaccines, and data as to their general effectiveness and risks of side-effects. There is a mass of medical and scientific evidence potentially available to the parties and the court including that which has formed the justification for the national vaccination programme, but the programme is not without its opponents. Where, as in the present case, a party rejects the established, national approach to vaccination and the analysis of the evidence which has been used to justify the national vaccination programme, I adopt the position articulated by Hayden J in SD (above) where he held that:

it is not the function of the Court of Protection to arbitrate medical controversy or to provide a forum for ventilating speculative theories. My task is to evaluate V’s situation in light of the authorised, peer-reviewed research and public health guidelines, and to set those in the context of the wider picture of V’s best interests.

The judge found at §51 that:

Balancing all the circumstances I have come to the firm conclusion that it is in E’s best interests to be administered the Covid-19 vaccine – the first, second and booster doses in accordance with the clinical judgment of Dr J. This would mean that if there is some concerning side-effect of the first does, Dr J would make a clinical judgment about whether further doses should be administered.

It was clear the judge was unimpressed with having cases brought before the court where arguments about vaccine efficacy are being made – and rejected – time and time again. Thus, he said at §53 that:

The parties in this case and in all similar cases should know that the principles articulated by the Vice President in SD (above) are now very well established and will be applied by the Court of Protection in vaccination cases – both Covid-19 vaccines and other vaccines offered under national vaccination programmes.

    1. The best interests assessment is not confined to evidence of the health benefits and risks of vaccination but involves a wide review encompassing all the relevant circumstances including those set out at s.4(6) and (7) of the MCA 2005;
    2. In relation to the benefits and risks to the health of P from vaccination, it is not the function of the Court of Protection to “arbitrate medical controversy or to provide a forum for ventilating speculative theories.” The Court of Protection will “evaluate P’s situation in the light of the authorised, peer-reviewed research and public health guidelines.” It will not carry out an independent review of the merits of those guidelines.
    3. There may be exceptional cases where P’s condition, history or other characteristics mean that vaccination would be medically contra-indicated in their case but in the great majority of cases it will be in the medical or health interests of P to be vaccinated in accordance with public health guidelines.
    4. Hence, disagreements amongst family members about P being vaccinated which are at their root disagreements about the rights and wrongs of a national vaccination programme are not suitable for determination by the court. It will be in P’s best interests to avoid delay and for differences to be resolved without recourse to court proceedings.

It is easy to see why earlier disputes about the administration of the Covid 19 vaccine came before the court, even if that was not specifically mandated by the MCA 2005 or the COP Rules. It is also easy to see why the court would now wish to draw some clear lines to prevent each and every dispute coming to court, however minor or ill-founded. Aside from saving court resources and time, it might well have the advantage of meaning that a person could receive a vaccination far more quickly than would be the case if a dispute went to court.

It may, however, be harder to apply this to real world cases. What is a CCG to do where there is a dispute by a family member who provides care for the person concerned and who might need to be involved somehow in the plan to give a vaccine? Or what if a family offers a range of reasons – involving criticism of the vaccination programme but also involving points that relate more specifically to the facts of the case?

 

A Clinical Commissioning Group v FZ and others [2022] EWCOP 21[1]

In FZ HHJ Burrows dealt with just such a case. Several members of FZ’s family were all against her receiving the vaccine. Some of their reasons were less compelling than others – see §40-48 where the judge rejected seven specific arguments that were advanced by the family. These included a point that the vaccines were not properly tested, and a point that because FZ had had Covid 19 in autumn 2021 (i.e. with the ‘delta’ variant) that gave her a degree of natural immunity such as to mean having the vaccine now was no longer in her best interests (see further the DC case below as to this latter point).

In FZ’s case, however, central to family’s case was their evidence as to how FZ would be likely to react if the CCG’s cautiously constructed plan to vaccinate her were allowed to proceed.

The judge put it like this at §49:

The strongest argument the family advanced was as follows. FZ is extremely suspicious of strangers. She does not like doctors or clinicians treating her, and needles. This is evidenced by her reaction to treatment in the past- the details of which I will come to below. Were FZ to be subject to the treatment, even using the planned intervention outlined in this case, it would cause FZ trauma that would last for the long term. TZ told me that she has built up trust over a period of time and there is a danger that would be destroyed, or at least damaged, if FZ saw TZ as conspiring against her with clinicians.

After considering the specific of the case further, he summarised his conclusions at §66-67:

As I have already made clear above, best interests have to be evaluated by taking into account factors that go beyond narrow medical concerns. In this case, I am satisfied that the CCG is right to advise that the vaccination should be offered to FZ. They have made efforts to ensure that a sensitive plan is devised to enable the vaccination to take place. I have no criticisms of them.

However, taking all the factors I have discussed into account I am not satisfied that the option placed before this Court is in FZ’s best interests. It is likely to result in trauma for her (and her family). It is likely to have to be aborted and then, possibly tried again and again until the CCG finally removes it as an option. I am satisfied that it would be wrong for me to authorise the plan before me.

[1] The author acted for FZ, instructed by the Official Solicitor via Rachel Eastham of Southerns Solicitors

 

MC and AC v A CCG and DC [2022] EWCOP 20

The third recent case practitioners might consider was reported after the handing down of judgment in FZ. It is an appeal to Hayden J from an earlier decision of HHJ Burrows in which he had decided to approve a plan for vaccination of DC, contrary to the views of his parents. They appealed to Hayden J who had given permission to appeal. The arguments centred around the fact that as a 21-year-old man DC was at a low risk of adverse effects from Covid 19, and not enough regard had been had to this by the judge.

But the appeal took a different course when in April 2022 DC contracted Covid 19 and became quite unwell as a result (though he did not require hospitalisation and made a good recovery). Hayden J found at §28 that:

HHJ Burrows’ decision is entirely unimpeachable, [and] but for the intervening Covid-19 infection, the appeal would have been dismissed.

The fact that DC had now had the virus plainly troubled the judge, however. His solution was to determine that the appeal ought to take effect as a rehearing (see COPR 20 and PD 20A) and that new evidence was required. He adjourned the appeal so the parties could find an expert, likely an epidemiologist, to report on the following matters (see §38):

    1. How many injections is DC likely to require?
    2. Given that DC was most likely infected by the Omicron variant, is it necessary for him to have both an injection and a booster?
    3. Given his ‘clinical vulnerability’, is it likely that DC will require any medication or vaccination presently targeted to this particular group?
    4. Is it the case that vaccination, post natural infection by the Omicron variant, is likely to boost immunity?

It might be thought that 18 months after the start of the national vaccination programme the number of cases about it that are brought before the Court of Protection would be diminishing. Overall, that may be so, but as the virus’s effects on society change over time, the factors relevant to decisions in these contentious cases will also change.

It seems that the courts will have to define the contours of Covid 19 vaccine disputes for some time yet.

This article was written by Ben McCormack.

Ben McCormack has been a lawyer for over 20 years, specialising in mental capacitypublic law and housing cases. 

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