By Angus Mackenzie, 23rd December 2021
I am a retired Intensive Care consultant, working part time for the Welsh Medical Examiner Service, and in my former life was involved in a few applications to the Courts for declarations in relation to patients under our care, though these pre-dated the (new) Court of Protection.
I observed this Court of Protection hearing because in my former life I was involved in teaching doctors about the Mental Capacity Act 2005 and related areas and am keen to see all doctors reaching the high standards set by clinicians who have taken the time to understand their legal and ethical responsibilities.
The case (COP 12770223) before DJ Mullins via MS Teams on 23rd December 2021, concerned a man in his 30s with severe cerebral palsy and learning disability (MK) who has yet to receive even a first COVID vaccine because his mother objects.
He is not able to express himself verbally and his lack of capacity in relation to healthcare does not appear to be disputed.
He also requires dialysis for kidney failure, for which he attends hospital three times a week.
The Clinical Commissioning Group responsible for MK’s care (represented by Clare Hennessy of Serjeants’ Inn Chambers) had made an application for MK to receive both the first and second doses of COVID-19 vaccine, and subsequent booster doses, as applicable.
The man at the centre of the case, MK, was represented (via the Official Solicitor) by Winsome Levy of Field Court Chambers.
MK’s mother is a litigant in person but was not present at today’s hearing due to illness.
The local authority (represented by Shadia Ousta Doerfel) is also a respondent and does not contest the application nor the declarations and orders sought by the applicant.
In this hearing, as in others I’ve been involved in, the attention to detail and the patient-centred nature of proceedings was impressive.
Delay
Previous Open Justice Court of Protection Project blogs (e.g. “Covid vaccination and a Christmas visit“) have observed that the Court of Protection is deeply concerned about the length of time which often passes between an issue being identified and an application being made to the Court.
District Judge Mullins took time to remind the Court of the problem of delayed applications, identifying, in this case, earlier missed opportunities.
Looking through the chronology of the case, the judge said. “It’s not my role to point the finger at any individual or organisation, but it doesn’t make comfortable reading. Vaccination was first considered in February or March 2021 and here we are in December and there hasn’t been any resolution – and no vaccination. And now he has COVID. Though he seems to be doing relatively well?[1]”
After being reassured that MK is doing well despite testing positive for COVID (and having a cough), the judge was at pains to point out that “at First Avenue House – and I’ve checked with the senior judge – if an application comes in concerning a dispute about vaccination, one of our technical experts will deal with it, and it will be referred to a judge quickly. The arrangements in the regional hub courts are similar – the court staff are alert to the need to progress vaccination applications quickly”.
The key point the judge reiterated was “if there’s any doubt – make an application. I would like the relevant people to know we are ready to receive applications and ready to deal with them quickly. The threshold for making applications is low. In cases such as this, where MK’s mother was objecting, and does object, there doesn’t seem to be any doubt that there should have been an application sooner. It doesn’t really matter who brings the thing to court: the important thing is to get the application made, and get the Official Solicitor involved, so we can address the specific case”.
The judge’s concern about delay was reflected by counsel for the CCG who explained that “nobody was quite sure of the pathway to escalate it, but I believe that’s been remedied now, so the local authority and clinical commissioning group will know how to escalate in future”. Counsel for the local authority said they were hosting an event in January at which they would “disseminate the court’s view and reiterate it to all participant local authorities who are attending as well”.
The Medicines and Healthcare Products Regulatory Agency gave approval to the Pfizer-BioNTech vaccine on 2nd November 2020; it has been available in quantity for most of 2021. The Bloomberg tracker reports that more than 8.82 billion vaccinations had been administered worldwide by 22nd December 2021.
I am struck by the contrast between what happens when patients in hospital are prescribed drugs which are not stocked or difficult to obtain. Often, considerable effort is expended in securing and administering supplies, and they can be administered within a day or two. Treating teams need to understand that if a best interests issue like this arises, the Court of Protection expects a sense of urgency and early application for their assistance.
Re-listing the hearing
Today’s hearing was hampered by the fact that both the patient and his mother are currently suffering from – apparently mild – COVID. Hence his mother was unable to take part in proceedings and MK’s vaccination, if it is to proceed, cannot now happen before 13th January 2022.
This would also allow time for an agent of the Official Solicitor to meet with MK – something which has not yet been possible due to his having contracted COVID-19.
The remainder of the hearing was mostly concerned with scheduling another hearing which allows MK’s mother to attend when she has recovered but does not delay the timetable for vaccination.
The Court is deeply mindful of the desirability of allowing the clinicians involved in this case to be available for their patients rather than attending hearings, and put a schedule in place to allow for written responses to questions which, it is hoped, may be sufficient to avoid the GP and the renal consultant needing to attend court.
I do hope I am able to attend the next hearing, provisionally listed for 10am on 10th January 2022, when hopefully the substantive question of whether vaccination is in MK’s best interests will be addressed.
Angus Mackenzie is retired from an NHS Consultant job in Anaesthetics and Intensive Care. He now works part time for the Welsh Medical Examiner Service. He tweets @anxiousmac
[1] Quotations provided by Celia Kitzinger who also observed this hearing. Note that they are as accurate as possible but since we are not allowed to audio-record court hearings, they are unlikely to be verbatim.
Photo by Fusion Medical Animation on Unsplash
Promoting Open Justice in the Court of Protection 
I completely agree that we need to escalate cases such as this to the Court of Protection ASAP.
However there is some confusion about who and how unvaccinated people within this group are identified and who has responsibility for taking the case forward.
GP registers still do not accurately record learning disability and there is an expectation that social care records all those with LD which they don’t: they only record those who are in receipt of social care funding.
We need to support GPs to urgently update and ensure the accuracy of their learning disability register to be able to identify those who have not been able to access the vaccination program.
We also need to help professionals identify cases that need the framework of the Mental Capacity Act 2005 to support escalation and identify who the lead agency should be to take these cases forward.
Sarah Pope, Service Manager for Community Learning Disability Nurse Team
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