Judge rules man with learning difficulties should be vaccinated against COVID-19
An application to administer the COVID-19 vaccine to a clinically vulnerable man has been approved by the Court of Protection, after his father disagreed with the local Health Authority that the vaccine was necessary and in his son’s best interests.
The case is the first of its kind in regard to the administration of the COVID-19 vaccine on a relatively young person, being just 31 years of age, with the Judge stating that it was also the first application regarding the COVID-19 vaccine more generally in the North West.
The application was made by the relevant Health Authority being, Tameside & Glossop Clinical Commissioning Group. The relevant person, referred to in the judgement as ‘CR’ was represented by way of independent mental capacity advocate, Cecilia Walsh of RPR Services, who was appointed by the court of CR’s litigation friend. CW in turn provided instructions on CR’s behalf to Court of Protection Solicitor, Ms Jaime Robinson of AWH Solicitors.
CR’s father was also joined as a respondent to proceedings and presented as a litigant in person, reporting that he had been unable to instruct legal representation. CR’s father’s position was supported by CR’s mother and twin brother.
The starting point for all cases before the Court of Protection is that of mental capacity. The Court of Protection only has legal jurisdiction to consider matters where someone has been assessed as lacking capacity on the specific decision at that specific time. CR’s cognitive impairment was such that he was assessed as lacking the mental capacity to decide to have the vaccine or not.
CR’s lack of capacity was not challenged and all agreed, including CR’s father that CR lacked capacity and that the decision as to if CR should or should not have the vaccine was a best interests decision. As a decision could not be agreed by all involved, despite a number of meetings and information provided, as a last resort the Court of Protection would need to make a final determination as in CR’s best interests.
CR’s father presented his case that the vulnerability of his son and the relatively unknown side effect or longer-term implications of this new vaccine on those with similar diagnosis raised his concern. He stated that ‘he had no objections to the vaccination in principle, but that it was not the right time for his son.’
He did not think that there had been enough testing for those with learning disabilities and that therefore the relevant clinical evidence was not available. He was also concerned that the contents of the vaccine itself might interact with the other medication that his son is prescribed and in particular those to control epilepsy and ADHD.
He agreed that his concerns were in-part linked to the now discredited theories forwarded by Dr Andrew Wakefield as regards his previously inferred link between autism and the MMR vaccine, and which he still believes were accurate despite the statement having been retracted by Dr Wakefield and him also being struck off by the general medical council and no longer authorised to work in the field of medicine or as a doctor. Despite such CR’s father attributed CR’s autism to the MMR vaccine that he received at birth, and his son has received no vaccinations at all since that time.
In objection, the CR’s father gave the following reasons for his decision:
- CR has background health issues;
- These are severe learning and behavioural difficulties, epilepsy, attention deficit hyperactive disorder and autism;
- The vaccine is not mandatory
- It has not been tested sufficiently
- It does not stop a person contracting COVID-19
- The long term side effects upon people with severe health issues are unknown;
- There is a concern that the vaccine may modify DNA/RNA;
- Some people have died after having the vaccine;
- Some people who have had the vaccine are now saying that it should not be administered
Whilst the Judge acknowledged that the father’s arguments were based on concern for his son, he was required to weigh up what would be in the best interests of CR. The evidence that exists and which was presented to the court by CR’s father but also by way of the Health Authority and those representing CR which included;
- The fact that the vaccination has MHRA approval in the UK
- There are no contra-indications for the use of this vaccine which apply to CR
- Astra Zeneca vaccines significantly reduce the risk of sustaining serious illness requiring hospitalisation (an 80% reduction in those over the age of 80) (cf The Lancet 3.2.21)
- A 75% reduction of asymptomatic infection (University of Cambridge 24th February 2021)
- That he is living in a care home (albeit COVID-19 free at present) and where there have been more than 25% of deaths caused by COVID-19
- He has a relevant underlying health condition, and which places him in a vulnerable group
- He is unable to comply with social distancing and hygiene measures
- The UK has one of the highest per capita death rates in the world
- The documented common side effects are mild
- If he did contract COVID-19 then the consequences for his health due to the health conditions that he does have might be serious illness or death
- CR being overweight
With it being determined that CR did not have the mental capacity to make the decision himself it was for the Judge consider the current evidence available, and to balance the benefits and burdens of CR receiving the vaccination or not.
His Honour Judge Butler agreed with NHS Tameside & Glossop Clinical Commissioning Group and that advanced on behalf of CR that receiving the COVID-19 vaccination was in CR’s best interests.
Of note however, it had also been documented and highlighted in proceedings that CR had previously presented with extreme challenging behaviours historically during medical procedures and as such the judgement added that neither physical nor chemical restraint should be used to facilitate the administration of the vaccine
Whilst making this decision, he said that the man’s father had outlines his concerns with ‘conviction and great clarity,’ adding that ‘I have no doubt whatsoever that his objections are founded on a love for (his son) and a wish to ensure that he comes to no harm’.
This case is an interesting preview of the types of cases that we could increasingly be seeing in the aftermath of the COVID-19 pandemic, and AWH was pleased to be involved in assisting in one of the first cases of its kind.