NHS Tameside & Glossop CCG v SR
| Jurisdiction | England & Wales |
| Judge | Butler |
| Judgment Date | 12 March 2021 |
| Neutral Citation | [2021] EWCOP 19 |
| Date | 12 March 2021 |
| Court | Court of Protection |
| Docket Number | Case No. 1372001T |
[2021] EWCOP 19
IN THE MANCHESTER COUNTY COURT
COURT OF PROTECTION
HIS HONOUR JUDGE Butler
Case No. 1372001T
Counsel for the Applicant: Mr Wenban-Smith
Counsel for the First Respondent: Ms Haines
Counsel for the Second Respondent: Litigant in Person
Introduction
The sole issue in this case is to determine whether it is in the best interests of CR to have a declaration made to enable the Applicant (‘the CCG’) to administer a vaccination to CR against Covid 19. There is no dispute that CR does not have the capacity to make this decision himself. This is the first such application of which I am aware in this Region (and which geographically covers the North West of England). The application was made on 23 rd February 2021.
The CCG rely upon the following assertions to support its application. It states that the professionals involved in the care of CR all share the opinion that it is in his best interests to have the vaccination. These comprise his GP (Dr M); a clinical psychologist (Dr P);Dr B (CLDT); his social worker (Mr F); his community learning disability nurse (Mr K); the manager of the care home where he currently resides (‘the care home’); his relevant persons representative (CW, and who is also his litigation friend in this application) and the author of a witness statement (Ms W) who is employed by the CCG and which statement summarises the professional opinions of those listed above together with other matters of fact as well as opinion drawn from Government Guidance on the issue in dispute. The vaccine that will almost certainly be used is that manufactured by Astra Zeneca.
CR himself is 31 years old. He has been diagnosed with a lifelong severe learning disability, autism and epilepsy. He has been living at the care home since 3 rd January 2021. This may be a temporary arrangement. His litigation friend (CW) supports the application made upon behalf of CR. CR himself is classed as ‘clinically vulnerable’ as opposed to ‘clinically extremely vulnerable’ as a result of his epilepsy and severe learning difficulties. He is also overweight, and it is estimated that this now 22 stone. His classification as being clinically vulnerable is by reference to the opinion and advice of the Joint Committee on Vaccination and Immunisation (30 th December 2020). He falls within the priority group for a vaccination. CW agrees with the evidence of the CCG that CR lacks capacity to make decisions as to whether to have a vaccination or not.
SR is the father of CR. There have been a number of meetings between him and the CCG (together with the involvement of the professionals listed at 1.2. above). He objects to the vaccination being given to his son for the following reasons;
(a) he has background health issues;
(b) these are severe learning and behavioural difficulties, epilepsy, attention deficit hyperactive disorder and autism;
(c) the vaccine is not mandatory;
(d) it has not been tested sufficiently;
(e) it does not stop a person contracting covid 19;
(f) the long term side effects upon people with severe health issues are unknown;
(g) there is a concern that the vaccine may modify DNA/RNA; (h) some people have died after having the vaccine;
(i) some people who have had the vaccine are now saying that it should not be administered;
(j) the period of testing of the vaccine was less than 12 months, and which is to be contrasted with 7 years as the most rapid period of testing for any other vaccine;
(k) there are a 200,000 doctors, nurses and carers who have refused to have the vaccine (and thus, it would appear, a body of professional opinion who are opposed to the vaccine);
(l) the survival rate of those who do not have the vaccine but who contract Covid 19 is 98% (and thus, it would appear the risks outweigh the alleged benefit);
(m) there has been no testing on patients such as CR (that is to say patients with the conditions that he has);
(n) there is no information as to the contents of the vaccine;
(o) the latter makes it unlawful for the vaccine to be administered.
These objections are taken from a document supplied by SR to the Court, and dated 9 th March 2021 (and pursuant to my order dated 5 th March 2021). In response to questions from myself, he stated that he had no objections to the vaccination in principle, but that this was not the right time for his son. This was based (mainly) on the lack of data as to the consequences of such a vaccine for those who fell into the same category as his son. He (and his family) did not think that there had been enough testing for those with learning disabilities (and as a result of which the relevant evidence was absent). He was also concerned that the contents of the vaccine itself might interact with the other medication that his son is receiving and in particular those that were used to control his epilepsy, and treat his ADHD. He agreed that (in part) his concerns were linked to the (now) discredited theories proposed by Dr Andrew Wakefield as regards the link between autism and the MMR vaccine, and which he still believed were accurate.
Thus, it appears that the autism which CR has, is attributed by SR to an MMR vaccination that he received at birth. He has had no vaccinations at all since that time.
Summary of Evidence
The only evidence considered by the Court is referred to at paragraph 1.2 above. It is dated 23 rd February 2021 and the author is Ms W. The contents of the statement are (in effect) to provide a brief chronology and some context to the application, and well as drawing on government guidance in this area.
CR himself is currently in a placement that may be temporary and is described as being for the purposes of an assessment. It is my understanding that this is connected with matters that are unrelated to the application before the Court but are connected with his conditions. It states that CR can communicate via a limited range of Makaton and will respond to physical cues. He can be resistant to intervention, including medical intervention. Indeed, there is a reference to him having a phobia of hospitals and health interventions (F8 of the bundle). However, in January 2021 he did permit blood samples to be taken from him by Dr B, and with staff at the care home to provide him with reassurance. I was informed that at that time CR was sedated (as a result of medication for one of his conditions) but that physical intervention was not needed and nor did CR pull away. Indeed, the CCG will not administer the vaccination if any form of physical intervention is required. This was confirmed by way of evidence in the form of minutes of a meeting which took place on 11 th March 2021.
There have been meetings to discuss the vaccination on 28 th January 2021; 1 st February 2021; 4 th February 2021; 8 th February 2021; 11 th February 2021; 16 th February 2021.
In particular, Dr M (his GP) ‘ discussed at length the highly likely risk of severe illness to those who contract Covid, with underlying health conditions and residing in high risk environments’. The care home is a high risk environment for contagion, albeit thus far there are no cases within that setting. Dr M was also of the opinion that the risk to CR should he contract Covid 19 ‘ would be significant and serious, with a risk of severe ill health and possibly death’. Dr B set out the known side effects as being ‘ soreness to the arm for a few days post vaccination and symptoms similar to flu, [and] such side effects can be conservatively managed’. The level of such risk is said to be 1 in 10.
Post vaccination, he will be monitored and any medication administered if there are side effects, ie by the use of paracetamol.
The Law/Principles
The only part of the Mental Capacity Act 2005 which has a direct bearing is Section 4 as follows. I have marked in bold those parts which are most salient in this case.
Best interests
(1) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—
(a) the person's age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.
(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.
(3) He must consider—
(a) whether it is likely that the person will at some time have capacity in relation to the matter in question, and
(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably...
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Incapacity and COVID vaccination.
...here) has written on three cases which came before the Court of Protection: Re E [2021] EWCOP 7; SD v RBKC [2021] EWCOP 14; and Re CR [2021] EWCOP 19. The authors explain: In these cases, ...the relatives of three care home residents lacking medical capacity, objected to their receiving the......