Covid-19 Vaccination – Best Interests & Medical Treatment – Re CR [2021] EWCOP19

Factual Background

In this, the third reported Covid-19 vaccination case, Hempsons represented the applicant CCG. Notably, the circumstances differed from those prevalent in two already reported vaccination cases as determined by Hayden J of SD [2021] EWCOP14 and Re E [2021] EWCOP7.

The CCG’s application concerned CR, a younger person aged 31 with a diagnosed lifelong learning disability, autism and epilepsy and no history of expressing any wishes or feelings with regards to vaccination. There was no suggestion that CR had capacity to make decisions regarding vaccination himself.

Residing in a “closed setting”, CR was considered to be in a clinically vulnerable cohort, due to pre-existing comorbidities of learning disability and autism, alongside an estimated weight of 22 stone. It was the unanimous view of those involved in CR’s clinical care that CR was in a priority group for Covid-19 vaccination.

Issues

All those involved in the delivery of and commissioning for CR’s care needs (including CR’s advocate who was appointed as Litigation Friend for the purposes of the application) agreed it was in CR’s best interests to receive the vaccine.

CR’s father, mother and twin brother however opposed the vaccination on what can broadly be summarised on two grounds (and set out further with succinct clarity by His Honour Judge Butler (HHJ Butler) at paragraphs 1.5 and 1.6 of the reported judgment):

1. insufficient testing for recipients with learning disabilities and autism; and
2. ongoing concerns of a link between provision of the MMR vaccine to CR as a child and his autism diagnosis.

Hempsons represented the CCG in making an application to the Court of Protection seeking a determination pursuant to s.15 Mental Capacity Act 2005 that it was in CR’s best interests to receive the Covid-19 vaccination. The consequences of not vaccinating CR against Covid-19 were such as to risk serious illness to CR. No authority was sought by the CCG for any sedation or restraint (whether chemical or physical) to be used to administer the vaccine.

Summary

HHJ Butler is clear in his judgment, following capacity not in itself being a contentious issue, that the question before him for determination was one solely of best interests. In consideration, HHJ Butler noted the relevant factors at paragraph 3.5 as follows:

1. That the vaccination has MHRA approval in the UK
2. There are no contra-indications for the use of this vaccine which apply to CR
3. Astra Zeneca vaccines significantly reduce the risk of sustaining serious illness requiring hospitalisation (with an 800% reduction in those over the age of 80) (cf The Lancet 3.2.21)
4. A 75% reduction of asymptomatic infection (University of Cambridge 24^th February 2021)
5. That CR is living in a care home (albeit Covid free at present) and where there have been more than 25% of deaths caused by Covid 19
6. CR has a relevant underlying health condition and which places him in a vulnerable group
7. CR is unable to comply with social distancing measures
8. The UK has one of the highest per capita death rates in the world
9. CR does not appear to have any anxiety about a medical intervention and which has involved the use of something sharp as recently as January 2021 (albeit this was whilst he was sedated with a medication that is now not being administered as part of his treatment
10. If the documented side effects are mild
11. If CR did contract Covid 19 then the consequences for his death due to the health conditions that he does have might be serious illness or death
12. CR is overweight

As well as the factors relevant to the best interests decision the Court was being asked to make, HHJ Butler requested written submissions upon the medical basis and scientific evidence of vaccination in advance of the hearing. This was likely a reflection of the younger age of CR compared with the individuals from previous cases as well as the absence of any indication of CR’s own wishes and feelings as regards the vaccination.

HHJ Butler also considered the views of CR’s family members, noting at 3.10 of his judgment: “the reasons for opposing the administration of the vaccine have no clinical evidence base. In particular the objections (and this is subjectively understandable) are based on objection to this vaccination for his son as a result of what SR believes were the consequences of the MMR injection and the autism of his son. Objectively, however, this is based upon the discredited theories of Dr Andrew Wakefield (advanced in 1998) and which were (a) found to have no basis in science; (b) were formally retracted by Dr Wakefield in 2020 and (c) resulted in Dr Wakefield being struck off the Medical Register.”

HHJ Butler found that it was in CR’s best interests to receive the Covid-19 vaccination, with a consideration to all relevant circumstances, notably CR’s young age and clinical vulnerability.

Take home points

Whilst this case was not classed as a “serious medical treatment” case requiring allocation to a Tier 3 Judge, if there is a dispute in relation to best interests regarding vaccination, consideration needs to be given in a timely manner as to whether the dispute should be put before the Court.

Whilst there was no such issue in this case, there may also be a difference in opinion as to whose responsibility it is to bring an application to Court in the event of a dispute (the three reported cases to date have been brought by a Local Authority, a family member and the CCG). Whilst the Court has not yet provided a firm view on this, it is clear that, if an application is required, any dispute as to responsibility should not delay the application.

In this case, CR had the support of an experienced advocate for a significant period before the application was made and this was extremely helpful in ensuring an efficient application and resolution. In any similar application, P’s wishes and feeling as regards vaccination (or any proposed treatment) will be of paramount importance and value and therefore are deserving of significant enquiry and support.

If you have any questions about this case then please do get in touch with Rachael or Helen.