By Angus Mackenzie, 19 January 2022
Editorial note: This is the latest in a long series of cases concerning Covid vaccination. For an extensive consideration of the issues involved, see our earlier blog post “The politics of the pandemic in the Court of Protection“.
This was the second hearing in a case to determine whether it is in MK’s best interests to receive COVID-19 vaccinations in accordance with Government guidance and the views of his treating team. It took place by video link on the morning of 10th January 2022, before District Judge Mullins (COP 12770223).
At the previous hearing (23 December 2021, which I blogged earlier), both the patient and his mother were suffering from COVID-19, and his mother was too ill to attend the hearing. Thankfully, both have now recovered and MK’s mother was able to join the hearing by telephone.
The applicant CCG was represented by Elizabeth Fox. MK was represented (via his litigation friend the Official Solicitor) by Winsome Levy. The local authority was represented by Shadia Ousta Doerfel. MK’s mother was a litigant in person.
Counsel for the applicant CCG provided a summary of the case so far.
The patient is 37 years old with “severe cerebral palsy”, “severe learning disability”, and “end-stage renal failure”.
He lives in a 24-hour supported living placement. He was described as “wheelchair bound”, requires assistance to get out of bed and attend to his personal care and is “extremely clinically vulnerable”. He attends hospital for dialysis three times a week (which increases his potential exposure to the virus).
At the hearing of 23 December 2021, it had been determined that he lacks litigation capacity and also lacks capacity to make his own decisions about vaccination.
He is also unable to express his wishes and feelings about vaccination.
Since 2013 he has received annual vaccination for influenza – most recently in December 2021 – and his mother has not raised objections to this.
The CCG’s application is to administer either the Pfizer or Moderna COVID-19 vaccinations and boosters. MK’s mother opposes the application.
The hearing
From the outset of the hearing, it became clear that MK’s mother’s relationship with the care home where MK is currently living is under considerable strain. She was critical of a number of aspects of his care and was keen to make a case for having him back home with her, partly because this would limit the number of carers who came in contact with him and hence reduce his risk of becoming reinfected but also because, as his mother, she believes she could do a better job. “I’m a healthy, strong, loving mother,” she said, “He’s my only son and I want to care for him”[1].
DJ Mullins took pains to point out that the question before the court was specifically whether vaccination was in MK’s best interests and that the Court was unable to consider where MK should be living in the absence of an application on the matter. It had been a different judge some time ago who made a decision about where MK was to live, and there was no information at that time that MK’s mother objected to the placement. “If you have changed your mind about where he should live”, said the judge, “raise this with the social worker and have a meeting to see if questions and worries can be resolved, and if they can’t, then there needs to be a separate application to the court”.
MK’s mother was then given an opportunity to raise her concerns about vaccination. She said “the doctors mean well, but I don’t trust the vaccine”. She expressed concern about the safety of vaccination and held the view that COVID is a man-made virus released by the manufacturers of vaccines. She was also concerned about recurrent infections, the prospect of future variants or different pandemic infections, which would result in the need for more and more vaccines. And some people, she said, are vaccinated but still lose their lives to COVID. She was concerned about side effects, especially the possibility of blood clots, particularly as MK spends long periods in a wheelchair. “If he is vaccinated and becomes sick,” she said, “I will never forgive myself. I ask the court to give my son safety.”
The judge explained – for the benefit of MK’s mother – that, as MK lacks capacity to make his own decision about vaccination, his job was to make a “best interests” decision for him:
“I have to take into account his own wishes and feelings, and so far I haven’t been able to identify any. I have to take into account the views of people who care for him. That includes the doctors and carers, and it includes you. The other thing I’m going to take notice of is the official government advice on vaccination, which you can see on the website.” (DJ Mullins).
The court then moved to consider witness evidence from MK’s GP.
Witness evidence from MK’s GP
Counsel for the CCG (Elizabeth Fox [EF]) asked a series of questions of the GP, beginning by asking “are you able to provide an explanation as to whether MK is at increased risk of blood clots from the vaccine?”.
The GP responded that the vaccine associated with concerns about blood clotting was the AstraZeneca version and it was proposed that MK would receive Pfizer or Moderna.
EF: Why or how is it that he could still get COVID even if he’s vaccinated?
GP: You’d need someone more well-trained in immunology than me, but vaccines can’t
100% guarantee that a person won’t get the illness the vaccine is designed to prevent.
EF: So what is the benefit of having the vaccine?
GP: Vaccination will prevent most people from contracting COVID, and for those who do
contract it, it will make the illness less severe. Most of the hospital admissions we are
seeing at the moment are unvaccinated patients.
EF: What is the benefit of vaccination specifically for MK?
GP: I’m particularly worried for MK because he’s very vulnerable. He’s vulnerable to
infection because he goes three times a week to hospital for dialysis, and he’s unable
to wear a mask. If he were to contract COVID – and, unfortunately, he already has – I
would be very worried about it. There’s a risk of morbidity.
EF: He has already contracted COVID – is the risk reduced now if he were to contract
COVID again?
GP: It’s difficult to say. We don’t know. We don’t know what variants of the virus we will
be dealing with next or how virulent they will be.
EF: What guarantee is there that he won’t come to harm if he has the vaccine. Or put
another way, what are the risks to MK of getting the vaccine?
GP: Most people who get vaccinated get a sore arm, which settles down quite quickly.
Some get flu-like symptoms, which tend to be short-lived. AstraZeneca carries a small
risk of blood clots: we would never administer AstraZeneca to MK.
EF: Practically, how will it be administered? In your surgery?
GP: Provisionally the plan is to administer it in his home, as a home visit, on 13th January.
MK’s mother was then invited to ask questions of the GP. The judge assisted her with this, by reformulating some of her questions.
Mother: There was a professor of world vaccination on the internet who said that Moderna
does not give protection – does not have very good efficacy.
GP: My understanding is that it’s effective and works well. I haven’t seen anything to
contradict that.
Mother: Like any mother, you want to protect your son. I don’t want him to have it in the
house with the care workers. If he has to have it, I want him to have it in the
hospital when he goes for dialysis, with doctors and nurses, so he will be safe.
I cannot be there myself. I cannot bear to see him taking it. If anything happened,
I could not live with myself.
Judge: So, first, who will administer the vaccine?
GP: A member of the vaccine team. They are trained professionals, trained to give that
vaccination.
Judge: What is the plan for reassuring him?
GP: He will be in his own home environment. We wanted to do it at home also to
minimise his risk of further contact. If we take him into a surgery, he’d be in a
waiting room with other patients and at risk.
Judge: He goes to hospital three days a week for dialysis. Could it be done at the same
time?
GP: It would have been some time back, but it’s not possible at the moment.
Judge: Knowing MK as you do, do you think it would be an advantage to him to have the
vaccination away from home?
GP: No.
Another member of the CCG, with practical experience of the vaccine team, was also in court and outlined the provisional plan.
The proposal was that a District Nurse from the vaccination team would visit MK at home and in the presence of a known carer (for comfort) administer the vaccine, carrying out such clinical observations as were appropriate for 15 minutes afterwards. The nurse would be one specialising in home services so “very well versed in dealing with people with limited mobility and other conditions”.
Turning back to MK’s mother, the judge asked, “So that’s the CCG’s provisional plan. Do you have further questions?”
MK’s mother continued to express her concerns:
“I’m not convinced that vaccination works. I’m not a medical person, but I believe that this illness is in the whole world, and the disease is not going to stop coming, so how many vaccinations will be needed? I have no faith in the care home. I don’t trust them. After 15 minutes, leaving my son with them, his heart might stop, I don’t know, and they might not call an ambulance. Every time I go there, they try to make it hell for me. I get really emotional at what I’ve been through in the last two and a half years I have been abused by them”.
The judge tried to cut her off during this speech, and then said:
“You asked how and by whom and where the vaccine was going to be given, if it is to be given. It was reasonable for you to ask whether it could be given in hospital. We’ve had answers, and if I’m right about the thing that worries you most, the vaccination wouldn’t be given by the care home staff but by a specialist district nurse who is skilled in doing this and can decide what needs to be done if there was a specific reaction and can give advice to care home staff. And that advice has to be obeyed by care home staff, and if it reassures you, I can write that into the order.”
MK’s mother expressed scepticism that care home staff would actually follow the nurse’s advice, and the judge said he would write into the order that the plan must be followed – checking with Shadia Ousta Doerfel (for the local authority) that this “wouldn’t cause problems with the care home, would it?”. She confirmed that it would not, adding, “that’s what we would expect to happen anyway”. The judge asked the GP, “does the care home call you if needed?” and the GP confirmed that they did, “very appropriately”, and paid tribute to the care rendered to MK by the staff in the home when he was ill, pointing out that they had been monitoring him hourly to ensure any deterioration would have been detected quickly.
As MK’s mother continued to ask questions of the GP along the lines of “Do you believe in the vaccine” and “Do you trust the vaccine?”, the judge rephrased these questions in a way that seemed designed to enable the GP to provide the information the mother was looking for. (That’s part of the judicial role – helping out a litigant in person.) “If MK himself was able to talk to you”, the judge said, “and he had some of the concerns his mother does, what advice would you give him. Would you advise him to have it or not?”. The GP responded by reiterating that COVID vaccinations were “generally very safe and effective”, that side effects are mostly “incredibly mild” and: “I would absolutely advise him to have it. He’s very high risk.”
The mother expressed additional concerns at this point – about how it had happened that she and her son had caught COVID (she believed it was from a member of the care home staff); and about her son’s ability to communicate (“I don’t know how the doctors are saying he’s not communicative. He can’t speak, but he can express things”). But these were not, as the judge pointed out, questions for the GP.
Referring to the GP and other medical professionals, she said: “I understand and respect their professional opinion, but I believe the same people are spreading the virus and making the vaccine, so it is terror in the world, and I have no confidence in the vaccine. Other vaccines we took as children, they worked to help us. This vaccination is very strange. There is divided opinion. I’m getting confused as a mother. Especially when a son cannot speak for himself, cannot protect himself. He’s like a baby for me, always.”
The lawyers (and judge) had no further questions for the GP, who was released with a comment from the judge that “MK is lucky to have you as his GP”.
Closing Submissions
Counsel for the applicant CCG said that the case was not complicated. It involved a straightforward application of the best interests test in s. 4 of the Mental Capacity Act 2005. The case law she considered relevant was SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14. She read out §31 from that judgment to emphasise that: ““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.” It remained the position of the CCG that MK should be offered vaccination as soon as he is eligible to receive it after the current infection (i.e. 13th January).
Counsel for the LA supported the CCG’s application – adding (with reference to the mother’s claim that she and MK were infected with COVID by a member of the care home staff): “these are not proceedings about who gave COVID to whom and no reliance should be placed on any conjecture about that”. Residence decisions would also be the subject of a separate decision on another day. Finally, she also quoted from SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14: “Strongly held views by well-meaning and concerned family members should be taken into account but never permitted to prevail nor allowed to create avoidable delay. To do so would be to expose the vulnerable to the levels of risk I have identified, in the face of what remains an insidious and highly dangerous pandemic virus.“ (§26)
MK’s mother, invited to say “anything you haven’t already said” was clear that: “I want the safety and wellbeing of my son. I want my son to be well and safe, whatever medication he is given. I think I shared what was in my heart”.
Finally, Counsel for MK via the Official Solicitor pointed out that the judge would “normally be provided with wishes and feelings, but the position is that MK is unable to understand or express his wishes about vaccination” but said that “it would be in his best interests to receive both the covid-19 vaccinations and any subsequent booster recommended by the government or felt appropriate by his clinical team”. She also quoted from SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14
In this case, “you don’t hear MK’s voice. But you hear he has not objected to the flu vaccination. With these jabs he did not object ‘in the moment’”
Judgment
The judge expressed his gratitude to all the parties, especially the mother to whom, he said, he was “grateful for bringing our attention to the practicalities of what’s proposed”.
He reminded parties that he had previously (at the earlier hearing) expressed concern about the delay in bringing this case to court, and he reiterated what he’d said at the earlier hearing: both First Avenue House London and the regional hubs of the Court of Protection have arrangements in place for dealing with urgent matters such as vaccination and referring them on quickly.
“It’s striking that the time it took for this case to come to court was so long that MK contracted COVID – which is of obvious concern to the court. Happily, his symptoms don’t seem to have been too serious.”
In reaching the decision, Judge Mullins pointed out he was required to consider, as part of best interests decision-making:
- the wishes and feelings of P where it is possible to ascertain them
- the views of others involved in his care – his mother, carers, GP etc.
- official government guidance
- MK’s individual circumstances.
The judge then summarised the situation, i.e. despite attempts to elicit MK’s own wishes and views about vaccination, he’d been unable to provide them. “I fully accept he’s able to express pleasure (for example at seeing his mother) and I also note that he has not physically turned away or shown reluctance to vaccination for flu in the past. If there were signs of resistance I’d take that into account – especially if asked to authorise restraint”.
In considering the relevant circumstances of the case the judge drew attention to the clinical advice given. Both the written evidence from two doctors, and the oral evidence of the GP who participated in the hearing incorporated NHS Guidance. “As the lawyers correctly submitted to me, it’s not the function of today’s hearing to go behind that advice and to question it. The consensus of the professionals is that MK’s best interests lie in being vaccinated.”
The views of MK’s mother were, the judge said, “not always easy to identify precisely because there’s a general and understandable anxiety about COVID and about vaccination.”
He continued.
“She was forthright and clear today. At other times I see from the papers that she has been less sure. When he was unwell, she said she wasn’t sure she’d made the right decision in objecting. She says she is unhappy with the care provided. There has been a breakdown in trust. I’m not sure to what extent that’s about COVID. She has attached too much weight to the possibility that a care home staff member might have been the means by which she and/or MK had contracted COVID. She also overvalues the idea that she can protect MK by taking him home and isolating him. That’s not practical. He needs 24-hour care, and he goes out to hospital three times a week for dialysis – that makes him very vulnerable. He’s also unable to wear a mask so is vulnerable that way. MK’s mother played a useful role in considering the practical details of how the vaccination would be administered and where the lines of responsibility would be drawn.
We reached a position where it was agreed there will be a plan setting out the details of how the vaccination will be given and making clear that clinical advice is to be followed by the care home staff. I think that would have happened anyway, but it doesn’t do any harm at all to have that in place. He will have either Moderna or Pfizer on 13th January or as soon as possible afterwards. It will be given by the district nurse who is part of a specialist team, who is well-versed in working with patients with impairments. At least one member of the care home staff will be present, and reassuring to MK, and he’ll be in a familiar environment – his home. Vaccination in hospital is not possible, and even if it were possible it would not be in his best interests.
MK’s mother has a number of underlying beliefs about the virus. That this is a man-made virus, which I think is a common belief, and that there’s a link between the creators of the virus and the producers of the vaccines – which is not a common belief. Her views about vaccination are directly contrary to the national guidelines.
Would the vaccine protect MK? Yes – we know now that people can get COVID more than once. We know he’s extremely vulnerable. The benefits outweigh any disadvantages. It will protect MK from a range of adverse consequences . If he were to become more ill it would be very distressing and confusing for him – and hospital treatment would be extremely distressing for him.
Is it safe? There is no reason to think he’d be at increased risk of side effects. The risk of blood clots is related to AstraZeneca and not on the vaccines proposed to be given. Side effects are likely to be localised and short-lived.
It is my clear view that it is in MK’s best interest to have all the doses recommended by national guidance and by the treating team at the time. There will be an order drawing up the plan for this and a practical road map.
DJ Mullins indicated that vaccination would take place on 13th January or as soon as possible afterward according to the plans outlined.
Observations
MK’s mother has adopted some controversial views about COVID-19 and vaccines, but the way in which she sought to incorporate her concerns- blood clotting for example – to the particular circumstances of her son was notable. She had given the matter considerable thought, as indeed she had when concluding that having him at home would limit contacts and hence possible further infection. Judge Mullins observed, however, that she gave undue weight to the possibility of protecting him at home, given that he needs to go three times a week to the dialysis unit.
Before I retired from being a Consultant in Anaesthetics and Intensive Care, I was working in a city where the Coroner held quite a lot of brief Inquests. My colleagues and I were quite used to attending and giving evidence, which gave us insight into the fact that many unnatural deaths occur without anyone necessarily being at fault. But where death had occurred after a prolonged or difficult hospital stay, relatives often attended with the expectation that there would be an exhaustive inquiry into matters which the Coroner did not agree had any relevance to the death. They were therefore often disappointed.
I felt that MK’s mother also expected a more wide-ranging enquiry, and sometimes struggled with the very specific nature of the question being considered in the hearing, having so much she wanted to get off her chest about MK’s living arrangements.
Both this hearing and accounts of others from the Open Justice Court of Protection Project demonstrate that the Judges try very hard to support Litigants in Person through the proceedings in compliance with the Equal Treatment Bench Book: “The aim of the judge should be to ensure that the parties leave with the sense that they have been listened to and had a fair hearing – whatever the outcome” (§11).
I cannot know how MK’s mother felt after the hearing, but DJ Mullins took great care to support her. It can be very difficult for Litigants in Person to isolate a single issue from its history and broader context, and I think we should be able to do better in explaining to them – and indeed to inexperienced witnesses – what to expect from the Courts.
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] Direct quotations are supplied by Celia Kitzinger who observed this hearing too. They are as accurate as possible (based on contemporaneous note-taking) but since we are not allowed to audio-record hearings, they are unlikely to be word perfect.
Photo by Hakan Nural on Unsplash
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