Who is to blame if the COVID-19 vaccination causes harm to P?

Bridget Penhale, 16 February 2021

Editorial notes: (1) For a different perspective on this same case, check out the earlier blog post by Bonnie Venter here. (2) The judgment has now been published SD v Royal Borough of Kensington And Chelsea [2021] EWCOP 14 (10 February 2021)

I attended the hearing on C-19 vaccination (COP 13707957, 10^th February 2021) without knowing what the content was beforehand but on the recommendation of another OJCOP observer. I have an academic and previous professional interest in the workings of the COP and the MCA 2005 and have found observation of hearings to be useful and instructive; this hearing was no different. 

I was late to the hearing as the email response to my request was late arriving and I was already caught up in something else when it arrived, having thought that I had not got access to the hearing. When I eventually saw the message, I decided to try to attend and gained admission; as the issue was not terribly complex it was possible to catch up fairly easily. However, as I missed a good half of the hearing, I will mainly restrict my comments to views about the Judge and his handling of the hearing and the judgment that he reached.

The issue he had to address was whether it was in the best interests of Mrs P (the 70-year-old care home resident at the centre of the case) to receive a C-19 vaccination. The applicant, Mrs P’s daughter, said that her mother was vehemently opposed to vaccines because of the harm vaccination had caused to her (i.e. to the daughter) and as a consequence “she never wanted to receive any vaccines”.  This harm was not described in court: the judge did ask about her medical situation, but quite delicately – saying that he did not want to embarrass her – and she said she would rather not get into that. Mrs P’s daughter also said that the vaccine has not undergone rigorous safety trials – in particular for people with pre-existing liver and/or brain damage – and is unsafe.

The daughter also said that there was an alternative drug that could be used to protect her mother from the virus. This is an anti-parasitic medication called Ivermectin, which is currently being actively considered for use against the Covid-19 virus. When I researched the evidence so far about its use against C-19 I found it somewhat equivocal.  The drug is still subject to clinical trials as much of the previous evidence relates to use with animals. As with many such medicines, Ivermectin also has a number of side-effects (including nausea, vomiting, joint pain and swelling, fever, blistering or peeling skin and hives).  Side effects which might result from any use as an anti-viral agent are not yet clear. (Check out this Medline Plus information here.)

So, it seemed to me that the daughter’s argument that her mother should not have the vaccine as it has not been proved to be totally safe, but that she should be given medication that has neither undergone full clinical trials for use against the virus nor been approved for such use by any regulatory authority was somewhat spurious.  Mr Justice Hayden raised exactly this concern during the hearing, commenting to Mrs P’s daughter, “you’re going for the unknown, the unapproved, and that’s the highest risk of option of all”.  She replied: “What I’m asking for is quite a maverick position, I understand that.  I am fighting for this because that’s what my mother would do if the situation were reversed.”

Overall, I was impressed with the way that the Hon. Mr. Justice Hayden conducted the hearing – for his incisive questioning and points made, his empathy when questioning respondents and witnesses and his ability to relate to diverse individuals without losing sight of the overall purpose of the hearing and his role in this. Some of his observations about the effect of the pandemic on care home residents were quite moving. These showed his knowledge and understanding of the issues involved for both residents and their families, but also particularly for care staff – with their responsibility to act to both protect residents and also to maximise well-being (especially in relation to mental health). Although this centred on those for whom they have a duty of care, the Judge also acknowledged the tensions and challenges for care workers with their own personal and familial situations, describing Mrs P’s key worker as “heroic”. His humanity and clear focus on Mrs P and the issue of what was in her best interests came across very clearly. And the oral judgment was both thorough and well considered, even though presented in a comparatively short time (and in real time at the end of the hearing). 

The court’s decision was counter to what the daughter was arguing for.  The judge found C-19 vaccination to be in Mrs P’s best interests.  But he acknowledged that the daughter had argued her case forcefully and eloquently. I felt that the fact that there was no apparent outburst or evident distress on the part of the daughter on hearing the decision indicated her sense that he had listened, heard and responded to her statements and there was a recognition of this on her part.

In response to her question following the judgment about who would be liable if anything happened to or went wrong for her mother as a consequence of having the C-19 vaccination, Hayden J’s simple and immediate response was “Me”.  I saw this as evidence both of his humanity and his skill as a Judge. The daughter was surprised at this reply and said something like, “It was a serious question”, to which he said “I was being serious too: you would start with me.” This was refreshing in its honesty and perhaps exemplifies his position as a Senior Judge (Vice-President) of the Court.

Bridget Penhale is Reader Emerita at the University of East Anglia, Norwich and also an independent consultant on elder abuse, adult safeguarding and adult social care. She tweets @bpenhale

Photo by Steven Cornfield on Unsplash