Mental Capacity Case

Royal Borough of Greenwich v IOSK & Ors

HHJ Hilder

IOSK was 17 years old at the time of the decision, turning 18 the following month, and subject to a care order.

As part of wider welfare proceedings, the local authority applied for a decision that it was in IOSK's best interests to be vaccinated against Covid-19. His parents both opposed the application and both believed that IOSK had an adverse reaction to the MMR vaccine as a child. IOSK's mother was also concerned that if he had a negative reaction this would not be identified timeously, due to her wider concerns about the standard of his care; IOSK's father advanced a number of arguments in his written evidence but submissions by counsel on his behalf focused on the risk of adverse reactions.

The relationship between the parents and the local authority had become 'to put it mildly, very strained'. (paragraph 6) Perhaps as a result of this, the local authority made an application for special measures to be applied for the questioning of their witness: if IOSK's father was unrepresented, he would put questions in writing which would be put to the witness by the judge (he was ultimately represented by counsel).

HHJ Hilder held that vaccination was in IOSK's best interests. Although his parents' fears arising from their beliefs about the MMR vaccine were real, there is simply no scientific basis for such concerns. Given that IOSK was residing in a placement outside the parents' home, their concerns and the anxiety IOSK's being vaccinated would cause for them could have no effect on his welfare and accordingly could be accorded no weight (paragraph 34). The evidence did not support any view that IOSK was receiving inadequate care.

The evidence was that IOSK liked being outside and active, and enjoyed social contact on his own terms. The court was satisfied that vaccination was in IOSK's best interests and made an order approving a plan setting out how the vaccination was to occur, including IOSK having the opportunity to familiarize himself with the vaccination centre in advance.

The judgment also contains a helpful summary of the case law on vaccination in the context of the pandemic at [30]:

I have been referred to a number of recent decisions about covid-19 vaccination:

  1. Re H (A Child)(Parental Responsibility: vaccination) [2020] EWCA Civ 664 – in which the Court of Appeal set out (at paragraphs 43 – 54) the history and ultimately the refutation of any credible link between the MMR vaccine and autism, and concluded that "scientific evidence now clearly establishes that it is in the best interests of children to be vaccinated in accordance with Public Health England's guidance unless there is a specific contra-indication in an individual case" and "the matter is not to be determined by the strength of parental views unless the view has a real bearing on the child's welfare."
  2. E v. London Borough of Hammersmith & Fulham & W [2021] EWCOP 7: where it was concluded that vaccination was in the best interests of an 80 year old woman living in a care home, despite the objections of her son.
  3. SD v. Royal Borough of Kensington & Chelsea [2021] EWCOP 14: where it was stated (at paragraph 33) that there is no presumption in favour of vaccination but "it is P's voice that needs to be heard". On the facts of the matter, vaccination was in the best interests of P.
  4. NHS Tameside & Glossop v. CR & SR [2021] EWCOP 19 : the father of a 31 year old man, clinically vulnerable within JCVI terms, had concerns linked to fears around autism and the MMR vaccine, and P had had no vaccinations since. On the facts of the matter, vaccination was in the best interests of P, subject to the caveat that physical intervention to achieve vaccination was not authorised.
  5. SS v. London Borough of Richmond upon Thames & South West London CCG [2021] EWCOP 31: an 86 year old care home resident, had refused the vaccine in the context of increasing resistance to medical intervention of any kind. On the facts of the matter, vaccination was not in the best interests of P.
  6. A CCG v. AD & AC [2021] EWCOP 47: for a man in his 30s who had moderate learning disabilities, Downs Syndrome and autism, was clinically overweight, and lived in supported accommodation, vaccination was in his best interests. Mild sedative could be used in advance of the vaccination procedure, but not physical restraint.