Naming a putative ‘expert’ in a COVID vaccination case: A letter to the judge

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Celia Kitzinger and Claire Martin, 6th December 2021

Editorial Note: We have now published another blog about this hearing which describes the process by which the court arrived at the decision that COVID vaccination was in P’s best interests: The politics of the pandemic in the Court of Protection

We chose to observe the hearing before Deputy Circuit Judge Rogers (COP 13816452, held remotely in Nottingham Family Court on 29th November 2021) because it was listed in CourtServe as dealing with the issue of “COVID vaccination”. We didn’t expect what happened next.

We’ve covered several hearings concerned with vaccination against coronavirus (COVID 19) as part of the Open Justice Court of Protection Project (e.g. “COVID vaccination in the Court of Protection; Why COVID vaccination is NOT in this care home resident’s best interests; COVID vaccination contrary to parent’s wishes; A COVID vaccination hearing. ). In each case there was a question (or dispute) as to whether or not vaccination was in P’s best interests and in each case the judge weighed up the risks of vaccination (e.g. known side-effects, restraint and acting counter to P’s wishes) with the benefits of vaccination (e.g. protection against potential illness and possible death). In cases where expert witnesses were asked to give evidence, this was in accordance with Court of Protection Rules Part 15 which lays out the rules for expert evidence.

At the outset of this hearing it became clear that evidence had been put before the court that didn’t comply with these rules – and also that a court order had been breached. A member of P’s family, his sister, had sent the court bundle to a retired GP (not involved in the treatment of P) who had read it and (at her request) written an email giving his opinion about the case, with permission to include it in documents before the court. This she had done.

So the hearing opened with a discussion as to whether or not this evidence was admissible.

It breached the court rules in a number of ways, most obviously in that permission is required to instruct an expert in the Court of Protection (Court of Protection Rules 15.2 and 15.5). No such permission had been sought.

Additionally, any application for permission to instruct an expert must comply with Rule 15.5 which includes providing the expert’s CV and a draft letter of instruction. The court will then decide whether the expert’s view is “necessary to assist the court to resolve the issues in the proceedings” (Rule 15.3).

The letter of instruction (i.e. what the sister had asked the retired GP to do) was not disclosed. His CV was subsequently provided at the request of the Official Solicitor, and discloses that he is a director of the UK Medical Freedom Alliance. That organisation states that is is “an alliance of UK medical professionals, scientists and lawyers who are campaigning for Medical Freedom, Informed Consent and Bodily Autonomy to be preserved and protected“. The organisation disagrees with the government’s approach to the pandemic and appears to endorse herd immunity rather than mass testing and vaccination. The retired GP made no mention of this affiliation (said the Official Solicitor) in the email in which he gave his opinion about P.

Counsel for the Official Solicitor drew attention to material posted online by the retired GP in which he asserts that COVID-19 is no different to flu; that children cannot transmit the virus; that masks are of “very limited value if any” and that it is not a “good thing to do” to have a vaccine unless you are very elderly or vulnerable. Nor, she said, did he have any particular expertise in relation to COVID-19, epidemiology, immunology or vaccination.

According to the Official Solicitor, the court did not need expert evidence to determine this application. (Evidence from those involved in caring for P had already been received and would be provided in oral evidence in court.) She added: “If any expert evidence was necessary, it would not be appropriate to obtain it from a retired GP with a particular personal view about the pandemic which he did not disclose when setting out his opinion“.

The sister’s counsel chose not to make an application to admit the evidence. “So,” said the judge, “would you agree with me that I now put it out of my mind and it is – not physically because it’s an electronic bundle – but it’s now removed from the bundle“. Counsel concurred.

The judge then formally declared the evidence inadmissible. He also declined to give retrospective permission to the sister to disclose court documents to the GP, ruled that the confidentiality of the court had been breached, and ordered that the GP should destroy the documents he’d been sent.

Transparency

So far in this blog we’ve not revealed the name of the retired GP who provided the inadmissible evidence.

That’s because in initially opening the case, and discussing the information to be covered by the transparency order (the reporting restrictions injunction), counsel for the local authority had said that – in addition to not naming P himself, his family members, the names of care home staff and treating clinicians (all standard prohibitions) – observers must not publicly disclose the name of this putative expert.

We wanted to challenge this prohibition on naming the retired GP whose email had been sent to the court. So when the court broke for lunch we hastily discussed our reasons and wrote a letter to the judge, sending it via one of the counsel whose email address we knew and asking for it to be forwarded.

The arguments we raised were successful, and the judge has permitted us to identify him. He’s Dr Jon Rogers (but as the judge was at pains to point out, not related to him, despite the same surname).

We thought it would be helpful to share the letter we wrote, to support others who might also want to contribute to transparency in the Court of Protection. Here it is.

29th November 2021

Dear Judge 

Application to name Dr Jon Rogers in publicly reporting COP 13816452

We write as two of the core members of the Open Justice Court of Protection Project to make the case that Dr Jon Rogers should be publicly named in our reporting of this case as a matter of public interest.  

Our key reason is: 

  1. The Transparency Order is designed to protect the privacy of the protected party (P) at the centre of the case.  There is nothing to suggest that naming Dr Rogers will cause P, or his family, to be publicly identified.

Additionally:

2. The matter of “expert witnesses” before the court is one that is clearly of public concern.  We have covered this in the Court of Protection previously (e.g. Faith, Science and the objectivity of expert evidence and When Expert Evidence Fails).  It is important for members of the public to be informed about the methods whereby expert witnesses are appointed to give evidence to the court, the difference between opinion evidence and factual evidence, and issues relating to the granting of permission retrospectively.  This is obviously easier to communicate if we can name the person whose opinion was judged, in this case, to be inadmissible.

3. Dr Jon Rogers is a public figure, who has made his own views on covid vaccination, and on public health measures during the crisis, abundantly clear on public forums, including notably as director of the UK Medical Freedom Alliance.  Videos posted by Dr Rogers online include assertions that masks are ineffective and that it is not “a good thing to do” to have a vaccine unless you are very elderly or vulnerable.  He has also made a video of himself endorsing a “Free the Face” march (protesting against the wearing of face coverings) (https://www.bristol247.com/news-and-features/features/to-live-years-under-this-strange-paranoid-dystopia-is-crazy/). In sum, he is a public figure who has made his own opinions very public and should properly be held accountable for them.  We believe that the balance between Dr Rogers’ right to privacy and our right to freedom of information undoubtedly falls squarely on the right to freedom of information in this instance.

4. It was stated in public court by counsel for the Official Solicitor during the course of cross-examination of P’s sister, that she (the sister) had contacted the UK Medical Freedom Alliance and shown Dr Rogers a draft of her witness statement and obtained his comments on it before filing it with the court.  (This was accepted as factually accurate by P’s sister.)  We expect to be able to report this part of the hearing, held in open court, in accordance with our Article 10 rights and do not see any counter-balancing Article 8 rights from either Dr Rogers (for reasons earlier stated) or from P’s sister (whose name and address we understand are covered by the transparency order).  

For all these reasons, we believe that the transparency order should not be extended to cover the name and identity of Dr Jon Rogers, and that the public has a right to know of his involvement in this case.

Thank you for considering this matter.

Yours sincerely

Celia Kitzinger and Claire Martin

Open Justice Court of Protection Project

What happened after we sent the letter to the judge?

After dealing with the substantive business of the hearing (was it in P’s best interests to be vaccinated against COVID?) and making a judgment on that (yes), the judge turned to the matter of whether or not the retired GP’s identity should be protected by the transparency order.

The judge hadn’t had time to read our letter, so asked us to make an oral submission. Celia spent about 10 minutes talking through the arguments we had made. (Yes, making submissions in court when you’re not a lawyer is a scary thing to do – but at least I had a ‘script’ in front of me!).

The judge then asked for submissions from the lawyers in court.

Counsel for the CCG said he was “neutral” on the matter. He agreed with our submission that as there was “no connection between Dr Rogers and P from a caring or other perspective there’s no obvious logic to preventing his identification in terms of protecting P’s identity“.

Similarly, counsel for the Official Solicitor, despite having no instructions on the matter, said that naming Dr Rogers was “of no relevance for protecting P“.

Counsel representing the sister (who had disclosed documents to Dr Rogers and asked for his input) took a different view, however. He accepted that naming Dr Rogers did not risk P being identified but said that Dr Rogers “has not contributed to this case“. There had been no application to join him as an expert, and so nothing we might write would have a bearing on “how experts are selected or appointed or even approached in relation to COP work”. He stated that “the genesis of Dr Rogers’ email was entirely innocent and sought by [the sister] for her own purposes“, and he could see “no good reason why Dr Rogers needs to be in any way associated with this case”. His view was that being able to name Dr Rogers would not add to the reporting of the decision. He also pointed out that since Dr Rogers was not in court, he had no opportunity to respond.

The judge ruled that “strictly speaking Dr Rogers has played no real role in this case” but that to characterise the situation in this way “flies in the face of reality“. He said that there had been:

“... a step taken by [P’s sister] which I regret. I could say I deprecate, but that may be going too far. There is value in drawing attention to the fact that information from professionals unconnected to the case should not be leaked into hearings. There is value in understanding why procedural rules for appointing experts are in place. The application is to make it possible for him to be named, or rather not subjected to any degree of anonymity, so that public discussion of public cases such as this are enhanced. Instinctively I am entirely in favour of that. The President is very keen on transparency. It is important that procedures in the Court of Protection are understood. I’m satisfied there’s a public interest here – particularly in a case where the procedure has gone wrong. And Dr Rogers is a person in the public domain already, with public views on these matters. I have to balance this public interest against the risk of P being identified. I’m satisfied that naming Dr Rogers will not undermine the confidentiality of P or of family members. I am overwhelmingly in favour of granting the application here.“

In our forthcoming blog post we will describe the substantive business of the hearing and the process whereby it was decided that covid vaccination was in P’s best interests.

In response to the point raised by counsel for P’s sister (right to respond), we also contacted Dr Rogers, described what had been said in court, explained that we would be writing about the hearing, and offered him the opportunity to respond. All that is for the next post.

Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

Claire Martin is a Consultant Clinical Psychologist, Cumbria, Northumberland, Tyne and Wear NHS Foundation Trust, Older People’s Clinical Psychology Department, Gateshead. She is a member of the core group of the Open Justice Court of Protection Project and has published several blog posts for the Project about hearings she’s observed (e.g. here and here). She tweets @DocCMartin

Footnote: All quotations are as accurate as we can make them, and are based on notes typed at the time: we do not have shorthand and they are unlikely to be verbatim. There was also a proposal to prohibit reporting of the name of the CCG, on the grounds that it has a “relatively limited role” in P’s care. Celia also spoke in court to challenge this and the judge ruled that “I see no reason why anonymity ought to be extended to that public body”. Finally, in addition to the CCG, P (via the OS) and P’s sister, P’s father was also a party to this case. He played a “low key” role in the proceedings, but supported vaccination for P, and did not oppose our applications for transparency.

The image is a still from a video post by Dr Jon Rogers on his (public) Facebook page and shows him “live – at Parliament Square” in London on 26th June 2021. Protesters threw tennis balls at Parliament and Downing Street to demonstrate against the continuation of covid restrictions, some of the balls bearing protest messages.