Judge: HHJ Brown
Citation:  EWCOP 47
In this case, HHJ Brown considered an application by a CCG to administer two doses of the Astra-Zeneca Covid-19 vaccination, and a booster in a few months’ time, to a man in his thirties, AD. This application was opposed by his mother, AC. The court granted the application to administer the two doses of vaccine, but refused to grant a general authorisation to administer a booster dose without either agreement of the parties or a further application to the court.
AD had diagnoses of a moderate learning disability, Down Syndrome and autism. He was overweight, and was considered to be ‘clinically extremely vulnerable’ by his GP. AD also “experience[d] significant health anxiety and finds health interventions distressing: he consistently refuses to engage with them.” His learning disability nurse considered that if AD became significantly unwell with Covid-19, he was likely to refuse necessary healthcare.
AD was unable to comply with social distancing measures or wear a mask. He was described as a very sociable person who enjoyed physical contact with people he was close to, and going to social settings of interest to him. The case was heard in May 2021, and it was submitted by the CCG that as lockdown ended, the risk to AD of contracting Covid-19 was likely to increase.
Health and social care professionals involved in AD’s care and AD’s father supported his being vaccinated; his mother (who had previously held AD’s lasting powers of attorney in respect of both health and welfare and property and affairs, before these were revoked by the Court of Protection in 2020) opposed it. All parties involved agreed that AD lacked capacity to make a decision about being vaccinated, so the sole dispute was whether it was in his best interests to receive the vaccine (and supportive medication, such as pain relief).
In weighing up AD’s best interests, the court considered:
AC clearly had grave concerns regarding the vaccine, which she supported with a mixture of materials obtained from the internet. The judgment recorded:
Mrs. C has made further points against the vaccine; “It is in the long term (or even as short as 5 months) that we started (sic) to see all the people who have taken the vaccine to fall very sick and have organ failure and will die”, and “many specialists expect even more people to experience deadly side effects after the next ‘quack’ dose and when they come into contact with natural virus similar to SARSCoV2, weeks or months later”
In describing the documents produced, the judgment states:
This set of documents, the origin of which is unclear, include statements to the effect that the vaccine contains “nanoparticles which allow definitive control of people vaccination, thanks to 5G” and “4 fragments of HIV which give to vaccinated people: AIDs syndrome and immunodeficiency” [E24]. The diagram at [E34], duplicated at [E76], appears to demonstrate that “sensor nanoparticles” will be injected into vaccine recipients which will then interact with mobile phones in order to send information via mobile 5G networks to the “cryptocurrency system”. The diagram features Bill Gates. At [E36] is a narrative concerning the intention of the “New World Order” to “fully control and enslave the world’s population by monitoring and weakening it” through the Covid-19 vaccine..
Relying on the judgment of Hayden J in SD v Royal Borough of Kensington and Chelsea  EWCOP 14, the CCG argued that such material should be given no weight and the court must make its decision based on the credible professional evidence before it.
The court did consider AC’s concerns that force would be used, and the administration of the vaccine might cause AD to distrust people working with him. The CCG confirmed that the application did not include any plan for using force to administer the vaccine. AD was to receive a mild sedative (given covertly in a drink) in advance of the medication, which would also have the effect of preventing memory formation. If the sedative did not appear to be working, the vaccination would be cancelled and rearranged. AD would receive the Astra Zeneca vaccine, which could be administered in his home and would not require him to travel to a medical setting. The person administering the vaccine would not be part of AD’s care team, and would leave immediately after administering the vaccine. AD would wear a short-sleeved shirt so his arm could be easily accessed. AD could also be given paracetamol to address side effects. His care provider did not think that this plan would cause any difficulties in the relationship between AD and his care staff.
Professionals involved in AD’s care considered it was strongly in his best interests to be vaccinated. His GP noted that serious side effects were very rare, and the vaccination would greatly reduce his risk from illness from Covid-19. The CCG’s Deputy Director of Quality considered it would be contrary to AD’s best interests to wait for further forms of treatments to be developed.
The Official Solicitor had raised a number of queries about the plan in proceedings, and by the final hearing, considered that these had been appropriately answered. The Official Solicitor also sought explicit orders that physical restraint was not authorised.
The court accepted the arguments of the CCG and Official Solicitor and approved the application, noting that if the plan was unsuccessful and a more restrictive plan was proposed, the matter should be returned to the court. HHJ Brown explained:
I entirely understand why there is genuine and legitimate concern from some, about the administering of a new vaccine to combat a new virus. People legitimately and in good faith, raise questions about its efficacy and possible side effects. I approach Mrs. C’s concerns with profound respect and deep compassion. I accept that she genuinely holds these concerns and is acting out of what she considers, to be the best interests of her child….
…AD’s opposition to healthcare interventions must be taken into account, in that the administration of the vaccine will be against his wishes and feelings: but his wishes and feelings are not determinative. These factors must be weighed in the balance, with all the other evidence about the risks to AD of contracting Covid-19 versus the risks to him of carrying out the vaccination in accordance with the proposed Care Plan.
I have to look at the professional evidence and the best guidance available to the court at the current time, in the best interests of AD. I have been very impressed with the care that the professional team working with AD has taken to consider his particular case and his need for the vaccination. When the balance of evidence from all those interested in AD’s welfare is considered, in my judgment it is overwhelmingly in favour of him receiving the vaccine.
Booster: The CCG sought authorisation to administer a booster vaccination in the event that the first two vaccine doses went well and there were no serious adverse reactions. The Official Solicitor resisted the application, on the basis that AD’s response to the first doses was not known, and the national position regarding booster jabs had not been determined. AC also opposed the booster.
HHJ Brown declined to give authorisation to the booster. She noted that:
The guidance and medical advice may have changed by the time any booster may be required. Any individual would wish to consider whether to have the booster at the time that it is available and those representing AD should be afforded the same opportunity. I respectfully accept the submission of the Official Solicitor that it would represent “overreach” to sanction administration of the booster at this time.
The judgment sets out a dispute which has been repeatedly seen in the Court of Protection at all levels this year: a family member, in good faith, strongly believes that receiving a Covid-19 vaccination will harm a loved one based on evidence which is not considered credible by health professionals working the person lacking capacity. In our experience, the approach taken by HHJ Brown (and in line with the SD case) to deal briefly with putatively medical evidence relating to vaccines which lacking in credibility or support from mainstream medical establishment has been one consistently taken by judges hearing these applications. The court did not struggle to conclude that, particularly given AD’s inability to understand the risks of Covid-19 or practice social distancing, it was in his best interests to be vaccinated even if there was some risk of distress to him.
In this case, AC also raised a number of issues specific to AD that both the court and Official Solicitor found credible (specifically, those relating to the distress he may feel and the impact on his relationships with carers), and the judgment sets out that these were put to the CCG in advance of the hearing, and the plan crafted to take account of them. The court and Official Solicitor appeared to find the plan impressive in accommodating AD’s particular needs, and to represent the least restrictive option in the circumstances.