Covid vaccination and a Christmas visit

By Jordan Briggs, 21 December 2021 (with addendum by Celia Kitzinger)

This hearing (COP 13793235), conducted over Cloud Video Platform (CVP) before Deputy Circuit Justice Rogers at Lincoln Family Court on Friday 17th December 2021, focussed primarily on whether it was in the best interests of a young woman (PH) with a severe learning disability who lives in a care home to be vaccinated against COVID 19. 

There were two additional matters: 

  • whether it was in PH’s best interests to visit her mother for two weeks over the Christmas period, and;
  • where PH should live next, given that her current care home has served notice to the local authority that PH must leave the care home. (This was reserved for a later hearing.)

On the matter of vaccination – which occupied most of the hearing – the applicant Clinical Commission Group (CCG) (represented by Luke Berry) took the position that Covid vaccination was in PH’s best interests. So too did the Official Solicitor (Dr. Oliver Lewis), who represented PH’s best interests, and PH’s father (the parents are no longer married to each other), who appeared as a litigant-in-person. 

Only PH’s mother (represented by James Pantling-Skeet) opposed Covid vaccination for PH.  

She was concerned about the possibility of severe side effects, especially because of concerns about how vaccination would interact with her daughter’s epilepsy medications). She also believes that PH may have “natural immunity” and that she is in any case a healthy young adult who is unlikely to suffer from a severe form of the disease.

Factual background

PH, who is twenty-five years old, has a “severe” learning disability, epilepsy and a congenital chromosomal abnormality.

All parties agree PH lacks capacity to conduct this litigation (which is why the Official Solicitor is appointed on her behalf).  All parties also agree that that PH lacks capacity to make a decision about receiving the Covid-19 vaccination. Final declarations had already been made relating to both litigation capacity and subject matter capacity in directions orders, and were not rehearsed again at the current hearing. 

Until 2014, when she was 17, she lived at home with her mother.  Since 2014 she has been living in a residential home, but maintains contact with both parents. PH’s mother lives nearby with her 21-year-old son (PH’s brother), and visits PH from time to time. PH’s father lives overseas, but maintains contact with PH via video-link.

PH is unvaccinated against almost all forms of disease. Indeed, the only inoculation which PH has ever received (an influenza vaccination administered in 2020) was given in error, after her mother’s directions not to administer the vaccination were not followed. Accordingly, PH is not vaccinated against coronavirus. 

In outline, the history of proceedings is as follows. In May 2021, PH became eligible to receive the coronavirus vaccination. In June 2021, the CCG made an application to the Court of Protection that receiving it was in PH’s best interests. Considerable delay ensued. A hearing listed for 13 October 2021 was adjourned (at the mother’s request) and a subsequent hearing date was fixed (for 17 December 2021). That hearing was made all the more urgent when, on 5 November 2021, PH’s residential home served notice to the local authority with respect to PH’s placement.  Her unvaccinated status was a “catalyst” for the care home to take this action.  They stated that they could no longer continue to safely provide care to an unvaccinated resident.  However, their service is pivoting to provide services to people with greater need for care than PH in any event, so whatever the outcome of this hearing in terms of PH’s vaccination status, a new placement would need to be found.

Against the background that PH’s ongoing care and residence was jeopardised by her unvaccinated status, and with her mother seeking Christmas contact with PH despite rapid spreading of the omicron variant of coronavirus, the Court of Protection sat to determine what was in PH’s best interests.  

Further to the mental capacity assessment carried out by professionals involved in her care, there is no suggestion that PH understands what the vaccine (or indeed any vaccine) is or what it is used for.  She has not made any statements in relation to the vaccine and how she feels about it and it is the view of the professionals that she does not understand what or how vaccination works.  She has however been generally amenable to medical interventions and one of her carers has expressed the view that PH is “the only person who gets excited about hospitals and doctors”.  

Unlike people in some other vaccination hearings, no restraint or coercion will be needed to vaccinate PH, and no order authorising force was required, since it was anticipated that she would accept vaccination.

The hearing

Access

Accessing the hearing was difficult. On the morning of the hearing, I emailed Birmingham County’s Court of Protection for a CVP link, but immediately received an automated response stating the Court would reply, but only within some 10 working days. I was advised (by Celia Kitzinger) that this is apparently routine, and does not necessarily mean that there won’t be a timely email with the link, but to phone the court for assistance if I hadn’t received the link by 20 minutes before the listed time for the hearing to begin.  In the event (not having received it and being told that HMCTS emails were down that day), Celia Kitzinger provided me with a different email address to obtain access.  Without her help I doubt very much that I would have been able to access the hearing. 

Further problems arose when I tried to join the hearing. I didn’t know that, on the CVP platform, observers must grant permission for their webcams and microphones to be used by CVP if they are to view others’ webcams and hear others’ voices.  Consequently, I denied webcam and microphone permissions, and could see and hear nothing when I first joined the hearing. Again, I liaised with Celia Kitzinger, who helpfully directed me towards the Court of Protection Transparency Project’s CVP User guide. I consulted that guide and, after re-joining the hearing with webcam and microphone permissions granted, I was at last able to watch the proceedings.  

When I joined, counsel were speaking with the judge to organise a schedule for the hearing. It was agreed that PH’s mother would give evidence first, followed by PH’s GP. Proceedings then promptly got underway. 

Witness evidence

PH’s mother

PH’s mother expressed the strong view that it was not in PH’s best interests to receive the coronavirus vaccination. Although she asserted in her position statement that she was “not an anti-vaxxer” and that she was “flexible” on the question of whether PH should be vaccinated, her oral evidence disclosed a vaccination-averse view resting on several assertions:

(1) She considered that clinicians had not undertaken an individualised risk-assessment to calculate the precise risks that vaccination would pose for PH. 

(2) She expressed concerns that vaccination could increase the heaviness of PH’s menstruation and intimated that vaccination should be withheld as a result. 

(3) She considered that neither the general public nor the court had access to complete information about the risks attendant upon coronavirus vaccination. Accordingly, she considered it inadvisable to administer the vaccination to PH because invisible risks could materialise and imperil PH. She expressed particular concern that, in her view, the ingredients of the Pfizer vaccination had been inadequately considered before the vaccination was widely distributed.

(4) She considered that PH didn’t need the vaccination in any event since PH is young and healthy and has a strong immune system, as putatively displayed by the fact that PH had never tested positive for coronavirus despite outbreaks in her residential home. Accordingly, PH’s mother felt that vaccination was unnecessary. 

Of course, the views of family members do not determine  decisions about what treatment a person will receive. As Rogers J would later put it, the focus here was on PH’s best interests, and her mother’s views are “neither determinative nor a veto” of what the court considers would be best for PH. 

The mother also addressed the matter of PH coming home for a Christmas visit.  This was clearly something she wanted very badly.  She described how she and her daughter “love each other dearly” and “have joy and pleasure in the time we spend together”. Her daughter she said, “loves Christmas decorations and a tree” – and visible on screen, in her home behind her, was a decorated tree with multi-coloured lights.  

Cross-examination of PH’s mother was principally conducted by counsel for the Official Solicitor. It focused mainly on whether PH should visit her mother’s home over Christmas, and what precautions would be taken to prevent PH contracting the virus, e.g. not going anywhere crowded, not using public transport. 

One relevant issue to the Christmas contact question was the vaccination status of the mother herself and her 21-year-old son, who also lives at home. For, if PH’s mother and her son were not vaccinated, the likelihood of their contracting and transmitting coronavirus to PH would be higher than it would be if they were fully or partially vaccinated. Accordingly, if PH’s mother and her son were unvaccinated, it may well not be in PH’s best interests to spend time with them whilst PH was unprotected herself.   

PH’s mother staunchly refused to disclose whether she or her son had been vaccinated, stating repeatedly that vaccination status was “confidential health information”. Despite direct questioning from counsel for the Official Solicitor and, eventually, from Rogers J himself, PH’s mother remained silent.  Foreshadowing later submissions, counsel for the Official Solicitor advised that he would invite the court to draw adverse inferences from PH’s mother’s silence. Other counsel had nothing to add. With that, PH’s mother’s evidence concluded. 

PH’s GP

Examination in chief of the GP began with the question: “What’s your professional opinion as to whether PH should be vaccinated”.  

The GP’s reply indicated a clear view that it was in PH’s best interests to be vaccinated against coronavirus to reduce her chances of death, hospitalisation and serious illness, and long covid.  He was particularly concerned about the new omicron variant because it is so much more contagious – a relevant issue given that PH is “a gregarious person” and not able to understand social distancing.

Cross-examination from Mr Pantling-Skeet covered a wide range of issues of concern to PH’s mother, including the risks of thrombocytopenia and risks associated with the Pfizer vaccine, in particular, for people taking medications for epilepsy, especially sodium valproate. The GP replied within the limits of the information available to him on the basis of PH’s medical records and the guidance he’d been provided with by NHS England and the Joint Committee on Vaccination and Immunisation (JCVI). 

Cross examination by Oliver Lewis (for the Official Solicitor) covered the question of why PH hadn’t previously received vaccinations (“because that was against the wishes of [PH’s mother]”; how she would cope with hospitalisation (“it would obviously be incredibly traumatic… very distressing for her”) and some questions relating to the proposed Christmas visit – focussing in particular on the additional risk for PH if her mother and brother are, in fact, unvaccinated.

Closing submissions

The CCG’s position on vaccination remained that it was in PH’s best interests to receive both doses of the vaccine and a booster dose.  “This court,” said counsel “is not a court of medical opinion”, citing Hayden J’s judgment in SD v Royal Borough of Kensington and Chelsea {2021] EWCOP 14 – in particular:

it is not the function of the Court of Protection to arbitrate medical controversy or to provide a forum for ventilating speculative theories. My task is to evaluate V’s situation in light of the authorised, peer-reviewed research and public health guidelines, and to set those in the context of the wider picture of V’s best interests.(§31)

Although there is no presumption in favour of vaccination in case such as theseHayden J in SD remarked thatthere is a strong draw towards vaccination as likely to be in the best interests of a protected party (§ 33)  Indeed counsel remarked that since Hayden J made those comments in February 2021, the situation has only developed: there are now new variants – omicron as well as delta and the original virus.  

Taken in the round, counsel submitted that a clear body of medical evidence supports vaccination, and warns of a real risk of PH becoming seriously unwell if she’s not vaccinated and contracts Covid-19.

This was supported by PH’s father.

For PH’s mother, James Pantling-Skeet argued that there is no presumption in favour of receiving the vaccination and that the burden of proof is on the person saying that someone should receive it.  This requires a decision specific to the person at the centre of the case, not a generalised approach. PH’s mother was her primary carer for 17 years and has an understanding of her from the mother-daughter relationship, as opposed to the viewpoint of professionals. She was there when new drugs for epilepsy were trialled on her daughter and witnessed what impact they had on her at the time. She’s understandably very concerned that this vaccination may put her at risk of similar issues arising again.  “The crux of it from [the mother’s] perspective is that she still does not feel there’s been an appropriate individualised risk-assessment for PH”, and consequently she wishes to “continue with the prevention measures that have served her well until now, combined with her natural immunity”.

For PH via the Official Solicitor, Oliver Lewis said that there is no medical evidence to suggest any clinical reason why PH should not be vaccinated – that “clinically and legally it’s quite straightforward”.  Dr Lewis said that the question of individualised risk assessment was a “red herring”: that there is a pre-vaccination checklist and that “there has been a risk assessment, Your Honour, and it’s been done in front of you in this court”.  Finally, although the court has a duty to take PH’s mother’s views into account, Dr. Lewis submitted that “it’s obvious that she doesn’t get to veto medical decisions”.

Judgment on vaccination

When the court reconvened at 2.15pm, Rogers J gave judgment on whether it was in PH’s best interests to receive the coronavirus vaccination. After setting out the facts, Rogers J commented that it was “unacceptable” that this hearing had incurred such delay – that, as PH had become eligible for vaccination in May 2021, to say that this case was “overdue for a decision” was “putting it at its lowest”

Before continuing Rogers J praised James Pantling-Skeet, a solicitor who had said at the outset that he’d never advocated in the Court of Protection before: he was doing so today because of the illness of the barrister in the case who had (ironically) contracted Covid.  Rogers J commenting that Pantling-Skeet had “demonstrated conspicuous skill in his conduct of the case”, especially in light of how little time he had to prepare his advocacy. Indeed, Rogers J remarked that he would “never have guessed that [Pantling-Skeet had never advocated in the Court of Protection before], because his obvious skill and attunement to the approach of this Court was very clear”.

Moving to the best interests issue itself, Rogers J retained a tight focus on PH’s wellbeing rather than her mother’s views. Rogers J firmly warned against “imput[ing] wishes or feelings or values simply because the close carer or relative has personal views or values of one sort or another”, and dismissed her mother’s suggestion that PH would “almost inevitably” have “expressed the same views as her mother” if she had capacity to do so. Rogers J noted that there was simply no evidence at all of PH’s own views, and to speculate on them would not be right.

Continuing to address the mother’s contribution, Rogers J commented that PH’s mother “was reluctant to disclose either her own or her son’s vaccination status”. This withholding was, the judge considered, “utterly untenable” and “unhelpful and obstructive of a proper investigation”. He found that she and her son “are on the balance of probabilities NOT vaccinatedThis is relevant to the issue because it has undoubtedly, in my view, coloured her overall approach”.

The judge doubted whether PH’s mother’s approach to vaccination was as flexible as she’d represented in her position statement, suggesting that the fact that PH had only ever received one (accidental) vaccination was “indicative of a principled rather than issue specific approach” from her mother. He described PH’s mother’s objections as “honest but immutable” and “genuine but without medical foundation”.  

Before turning to PH’s GP’s contributions, Rogers J endorsed and repeated the SD refrain: that the Court of Protection’s role was not to arbitrate medical controversy or ventilate speculative theories, but rather to take an individual, fact-specific approach to non-capacitous persons. In this connection Rogers J dismissed PH’s mother’s suggestion that the court possessed incomplete information about coronavirus, remarking that there exists a “robust and reliable” body of medical and Public Health guidance which it would be quite wrong to disregard. Frankly, the judge remarked, “[t]he court as decision-maker is bound to pay close attention to JCVI and MRHA and Public Health England”.

The judge then turned to the evidence from PH’s GP, describing him as “impressive and a GP of some experience” whose “authoritative” evidence had described “profound” advantages for PH in receiving the vaccination. Dismissing PH’s mother’s view that there had been no individualised risk assessment for PH, the judge considered that this GP and other health professionals had properly focused on PH herself, and had been questioned extensively in their analyses. From that questioning there had emerged a unanimous view among the health professionals that, while there may well be small disadvantages for PH in receiving the vaccination (e.g. possibly heavier menstruation), overall the “clear conclusion” was that it was PH’s best interests to receive the vaccination. 

Indeed, Rogers J noted that PH’s learning disability, lack of self-awareness and place of residence placed her at the very highest risk level of serious infection. 

Accordingly, the judge  decided that it was in PH’s best interests to receive her first dose of the vaccination “as soon as possible”, with subsequent (and booster) doses to be administered also to PH without there being a need to return to the Court of Protection. It was, the judge considered, merely “good fortune” that PH had not become unwell already in the pandemic, and not at all indicative that vaccination was unnecessary in the circumstances.

With judgment given on that issue, James Pantling-Skeet asked for a short break to take instructions from PH’s mother on the issue of Christmas contact. The judge obliged, and stated that court would reconvene at 3.30pm.

Reflections

At that stage, I had to leave the hearing to attend to a prior commitment. Professor Kitzinger offered to  provide the write-up for the remainder, and I am obliged to her for doing so. Yet even without watching its conclusion, I found it extremely instructive to observe the hearing. Three matters warrant mention.

(1) I was impressed by how sensitively the court handled the controversial issue of coronavirus vaccination. I think it’s right to remark that many who resist coronavirus vaccinations do so on ideological or political grounds, and form something of an ideological minority in society today. How the court handles such minorities surely impacts its legitimacy: if a court rode roughshod over those with minority views, those individuals may lose faith in the court’s fairness and could consider its decisions illegitimate. As a result, I was glad to see Rogers J stress that the Court of Protection is not concerned with airing medical controversy, and instead ground his reasoning so firmly in what was best for PH. Rogers J observed respect for PH’s mother throughout, even when describing her views in no uncertain terms as entirely medically unsound. Such dignified treatment of all, especially in controversial cases, is wholly welcome and important.

(2) Relatedly, I welcomed how much the court recognised the mother’s love for PH. The warmth of that relationship was remarked upon by Rogers J, counsel for the Official Solicitor and counsel for the mother. Recognition of that love seems important for two reasons. First, it implied that ultimately the court was working with rather than against the mother, toward the same end (i.e. trying to keep PH safe), and that the court was merely supporting her caregiving role rather than supplanting it. This appeared to be helpful for the mother in the hearing, and may help her to manage the distress she must feel from her views about PH’s best interests being overridden. Second, and connectedly, recognising the present warmth of the relationship between PH and her mother may help sustain it through this difficult period. It’s likely that PH’s mother will find it difficult to see her daughter vaccinated against her wishes, and PH may perceive that discomfort as a distressing disturbance in their relationship. However, sustaining that mutually loving relationship is no doubt in PH’s best interests, and supported by recognition of the sincerity and longevity of the mother’s love.   

(3) Finally, I was impressed by the skilful advocacy throughout proceedings. It is trite but true that advocates should be able to think on their feet, and James Pantling-Skeet’s skilled performance despite late instruction was a Mr masterclass in that regard. Especially so during final submissions when in my view Mr Pantling-Skeet made the mother’s case as convincing as could reasonably be expected, owing to careful representations of applicable law (e.g. rightly remarking that there is no legal presumption in favour of vaccination) and forensic selection of helpful facts (e.g. that the mother’s 17-year custodianship of PH made her uniquely well-placed to assess PH’s needs and interests). Furthermore, during proceedings I obtained written advocacy from counsel for the Official Solicitor in the form of two Position Statements (PS). (The first was the Official Solicitor’s original PS for this hearing. The second, triggered because only four days before the hearing PH’s mother filed her own PS and requested Christmas contact, was updated to respond to the same and reflect the very latest epilepsy-related coronavirus vaccination science). The Statements were clear and profoundly persuasive, and analysing their composition will undoubtedly uplift my own drafting skills. Once again therefore, observing a Court of Protection hearing has proved profoundly helpful for my professional development. 

I now hand over to Celia Kitzinger to address the Christmas contact issue and residence.

The Christmas Visit  (Celia Kitzinger)

Counsel for PH via the Official Solicitor (Oliver Lewis) had taken instruction over the lunch break on the matter of PH’s proposed 2-week visit to her mother.

The Official Solicitor wanted me to emphasise at the outset that there’s obviously real love between PH and her mother, and the Official Solicitor would like to say that PH should be with her mother over Christmas, but there are seven reasons why this would not be in her best interests”. 

The seven reasons were:

  1.  If PH were vaccinated tomorrow (as seemed likely), it would be two weeks before it became effective, i.e. it wouldn’t “kick in” until 7th January.
  2. The Court is entitled to infer that PH’s mother is unvaccinated (because it would help her case to say that she and her son were vaccinated); sending PH to an unvaccinated family poses increased risk compared with sending her to a vaccinated family.
  3. The mother reported that PH’s 21-year-old brother is “coming and going” from the family household, without being able to say where he would be coming and gong from, and this means there is no robust shielding plan.]
  4. PH is more at risk now than previously because of the new omicron variant.
  5. It was entirely accepted that PH would enjoy a visit to her mother’s house.  However, of magnetic importance is the fact that PH’s learning disability mean that she’s not able to anticipate events such as going home and seeing her mother for Christmas, so she’s not looking forward to it, and will not be disappointed not to be able to do it, in the way that someone who has no cognitive impairment, or a mild cognitive impairment would.
  6. There are no contingency plans in place for how PH would be cared for if she got covid while at her mother’s home, or if her mother got covid, or if there was an outbreak in the care home and she was unable to return there at the end of the two-week period.
  7. The future residence for PH is as yet unknown.  Prospective new care home providers will have to assess her, and the best place for them to do that is in her current care home rather than at her mother’s home.

For these seven reasons, and “with a heavy heart”, counsel did not believe that it was in PH’s best interests to visit her mother over Christmas.  It’s “a small sacrifice to lower the risk of her catching covid that could be fatal”. A representative of the care home had earlier said: “Our staff view is that if she goes home she’ll enjoy spending time with her mum… but we would also be sure to give her a very special Christmas at the care home”.

I got the impression that neither of PH’s parents had expected arguments against PH visiting her mother for Christmas.  The father said that in his view “I can’t see that circumstances have changed massively”, despite omicron, from previous occasions when PH had visited her mother.  He also thought that PH’s brother could be open to discussion about how to mitigate the risks – perhaps by staying with his girlfriend, who lives nearby.

Mr Pantling-Skeet asked for another adjournment to discuss the situation with his client (PH’s mother) and – perhaps – with the brother.

And Oliver Lewis suggested that if there was to be a break in proceedings, it would be useful to see if – now that PH was to be vaccinated – her current care home would be willing to extend her residence there until the end of January.

On recovening, we heard from the legal director for the care home who now stated they were willing to keep PH’s placement open through to her second vaccination (so for another 8 weeks), on the understanding that the local authority would make arrangements for her to move to her new care home the following week.  She expressed “disappointment” with the local authority’s communication so far about new placement possibilities.

The legal director had also reminded Oliver Lewis that PH would have to isolate in the care home for 14 days on return from a visit to her mother.  Oliver Lewis added that as an eighth reason why a Christmas visit was not in PH’s best interests.

A social worker for the local authority said that “since notice was served, we have been actively looking for an alternative placement. We can’t give a time frame because it can take from 2 days to 2 years.  It’s not easy and straightforward”.

The judge interjected: “this mustn’t drag on for two years!” – and then invited James Pantling-Skeet to address him on the matter of the Christmas visit.  As counsel for PH’s mother, James Pantling-Skeet engaged with each of the eight points raised by Counsel for the Official Solicitor as reasons why a visit to her mother was not in PH’s best interests.

  1. The fact that vaccination is not effective for two weeks needs to be weighed against the psychological and emotional benefit of visiting her mother, and both PH’s and her mother’s right to family and private life.
  2. It’s difficult to quantify the risks to PH of being with people who are vaccinated vs. those who are not vaccinated. Even vaccinated people can transmit the virus.
  3. PH’s brother has agreed that he’s happy to reside with his girlfriend while PH is at his mother’s home.
  4. There are risks from omicron in either the care setting or in the family home – and the previous judge did rule that it was in PH’s best interests to spend Christmas with her mother.
  5. The Official Solicitor’s view is that PH is not able to anticipate and look forward to visiting her mother.  Although it might seem that way reading the papers, the mother does feel she would look forward to a visit: when they speak on Facetime PH says, “See Mummy”, indicating some expectation of contact.  This is the mother’s insight from being PH’s mother and knowing her in the way that she does.
  6. Contingency plans in the event of illness are as they have always been before Covid.  The mother would work with her local support network to seek help, taking into account who has a negative test result.
  7. The matter of residence has now been sorted for the short-term
  8. The fact that PH will need to isolate on returning to the care home is not ideal, but the benefits to her of having contact with her mother over the Christmas period would outweigh the disbenefits of isolation.

Counsel for the mother also said that the mother would comply with whatever testing was required to assure her daughter’s safety in the view of the court.

Judgment on Christmas visit

The judge saw merit in six of the eight considerations raised by the Official Solicitor: the brother’s role is now “diminished in scope” (because he’s agreed to stay with his girlfriend rather than with his mother) and the judge did not attach much weight to the seventh point (that future care homes would benefit from PH being on site) and chose to “disregard” that.   

This was, he said, “an acutely difficult matter” but it would be “incompatible with the decision I took earlier this afternoon if I were to sanction something that would undermine PH’s safety, simply to assuage [her mother’s] understandable desire to spend Christmas with her daughter.  Neither regular testing, nor the removal of [Brother] is sufficient.”  

He was also concerned about where PH would live in future (“it would be a disaster if in February we were no further forward”) and a next hearing to address this is listed for 20th January 2022.

As the hearing ended, plans were in train to vaccinate PH within the hour.

Jordan Briggs is Denise Pannick Scholar at Gray’s Inn currently studying on the Bar Vocational Course at City Law School, London. His previous blogs on legal matters include a brief history of legal aid and a 3-part series on the government’s response to Covid-19 and the rule of law and he’s previously blogged for the Open Justice Court of Protection Project (“Elective caesarean in her best interests“). Jordan tweets @JordanBr1995

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

Photo by Liviu C. on Unsplash

6 thoughts on “Covid vaccination and a Christmas visit

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