By Alice Hodkinson, 19th February 2022
A recent blog post (The politics of the pandemic in the Court of Protection) reports and comments on a hearing before Deputy Circuit Judge Rogers in Nottingham (Case no. 13816452) at which the judge ruled that an autistic learning-disabled man in his 30s, living in a care home, should be vaccinated against COVID-19, in spite of his sister’s concerns that vaccination was not in his best interests.
I was asked to look at the blog about this case following an interaction on Twitter where I expressed my distress at the overwhelming opinion that vaccination is a good thing in all circumstances and that any dissenters were just wrong.
Often on Twitter any opinion expressed contrary to the current paradigm is met with abusive personal responses that don’t look at the issues themselves but just react aggressively against any view contrary to their own apparently entrenched view.
Of course, I have my own biases: I am a GP and A&E doctor who has seen quite a number of coronavirus sufferers, but also people who had come into A&E too late with other conditions, some of whom died. I have also experienced first and second hand the harms of the pandemic response in terms of family illness, difficulties and disagreements.
In my medical practice I endeavour to follow evidence-based medicine; this means I am not always on the side of the medical establishment that can be focused on one specialist area while missing the bigger picture. Occasionally the medical establishment is simply entrenched in practice that should have changed.
I have found the response to coronavirus distressing because it has not appeared to follow the evidence that we had available at the time. Neither how we treated children nor how we treated the elderly were sensible responses; indeed, the deaths amongst the elderly were tragically high while children bore a high burden of the lockdown for no benefit to their own health. Now that we appear to be coming to the end of the pandemic, dissenting academic voices are becoming more prominent and I can be more open about my own reading of the evidence.
These vaccine cases are fascinating for many reasons, and I enjoyed reading the blog, reminding me why I took a Masters in Ethics and Law a few years ago. This case was only ever going to be decided one way, as case law usually supports vaccination in the case of disagreement unless the protected party can be shown to have, or to have had, a clear personal perspective, such as that of the protected party in the case of Re SS (Re SS  EWCOP 31). But this case was unbalanced in terms of the people involved in the case and how the evidence was framed, and I am not entirely sure that it was in this particular person’s best interests to be vaccinated. I must make clear, though, that I only have the blog for my information: I was not present for the hearing itself.
Also, for clarity, I was vaccinated against COVID-19 in January and March 2021, having decided early on that it was my duty to aim to protect other people, rather than myself. I didn’t realise at the time that the vaccine wouldn’t stop me spreading it to my vulnerable relatives or patients. I have been vaccinated against all the usual infections, have my ‘flu jab every year and my children are fully vaccinated.
I found this blog difficult to write as I am one of those who find myself abused on social media for having opinions that might be different from the prevailing narrative.
The subject of this case is a 39-year-old man with “severe intellectual disabilities and severe Autism Spectrum Disorder” who lives in a care home.
He cannot consent to vaccination, but would have been vaccinated in his “best interests”, if it were not for the objection of his sister who strongly opposed his vaccination. It is reported that he is in good health but his behavioural and learning disabilities, his residence in a care home and any other conditions or medications statistically increase his likelihood of doing poorly if infected with coronavirus.
He had already been exposed to coronavirus in his home; indeed, he was the only resident not to develop symptoms of the virus even though he was unable to wear a mask or to distance himself from others. It is very likely, therefore, that he has met – and his immune system has interacted with – the virus already.
While vaccination may well be in his best interests, there are enough uncertainties to consider that this is not as clear cut as it might appear: these include his previous exposure to COVID 19 infection and the controversies over the epidemiology of the vaccines themselves, as questioned by some prominent scientists.
Risk of infection for P
So, what is the risk of infection for P? Before one is exposed it is difficult to say for certain, given there have been some deaths in very young people while there have also been cases of remarkably few symptoms in some elderly people. Broadly, however, the older and more generally unwell, the more likely one is to do worse or die from a COVID infection. On balance, the risk is low for P as he is young and said to be in good health, although undoubtedly with a higher risk than a person of a similar age without disabilities.
However, things change once someone has had the infection: we can say for certain what the risk has been for that individual from that episode. Given that P had little or no illness from interaction with the virus in his home, the risk to him from future infection is most likely to be reduced, with the caveat that a more deadly immunologically distinct variant might arise which would put him at risk along with the rest of us, vaccinated and unvaccinated alike.
We do know that previous infection confers some protection, and it appears that second infections are usually less severe. It is also known that vaccination as well as infection appears to add to protection from further illness, if not from infection.
For P, as he had very few or no symptoms, we can reasonably reliably say that he is unlikely to be particularly unwell from the same or another similar variant of COVID-19 coronavirus. This is also supported by studies on coronaviruses from before the 2019 pandemic started.
Risk of vaccination for P
What about the risk of vaccination? The risk of significant vaccination injury appears to be very low, in the region of 10 in 1 million, although absolute numbers vary with the source of information.
There have been, however, concerns raised by some well-known statisticians and epidemiologists about whether there are overall mortality benefits from the vaccine, but these have been unpublished; journals that were very happy to publish their other work have decided not to publish these particular data. It may be that medical and science journals do not want to publish anything that could be used by the anti-vax or COVID-denying groups; however, not having these data in the mainstream literature means that it is not peer reviewed and not criticise,d and we cannot learn from it in a scientific forum. Thus it remains a grey area. There are papers are available online via Professor Fenton’s web page, a man we certainly can’t label as uninformed, antivax or a COVID-denier, or any of the other ad hominem attacks that people who question the current paradigm have levelled at them.
Clearly, if vaccination is in P’s best interests, then he should have the vaccine. We do not know, before he has the vaccine, if he will have a reaction. We do know that he has not shown any effects from his exposure to coronavirus, so the balance of the risk and benefit to him individually has shifted, even if all he gets from a vaccination is the pain of the jab, the distress of being restrained and a few days of a sore arm for each vaccination he is given.
If it could be argued that it is in his best interests to be vaccinated because it reduces the risk to others, then this could be a reason to vaccinate: case law has allowed altruism to be a reason for some treatments (Re Y (Bone marrow donation [1996 2FLR 787])
In this instance, we cannot demonstrate an altruistic benefit to P: the Delta strain was infecting vaccinated people in the UK; Omicron is even more easily transmitted; vaccination does not give sterilising immunity (preventing future infection) although it does appear to reduce severity and the likelihood of catching the disease by a small amount. Vaccinating P will not prevent infection of other residents in his home, so this cannot be a justification for vaccination.
Reading the blog, I felt quite sorry for P’s sister. It appears that she was seen as a disingenuous figure, not having her brother’s best interests at heart, with ulterior motives for her opposing his vaccine. This is an impression that I did not read in the case description myself. Indeed, I cannot see why anyone would go through court proceedings unless she was very much trying to do her best by her brother.
She provided a spreadsheet of information about the vaccine that is described as “non-expert” by one of the barristers in the case, Victoria Butler-Cole. And this of course is the trouble: the question of who decides what information is valid, what is true, who is an expert or non-expert, and it cuts to the heart of the information wars that we have had since the start of the pandemic. If professional epidemiologists, statisticians, Bayesian modellers, professors of risk information, evidence-based medicine and theoretical epidemiology can be blacklisted, finding themselves unable to be published then how can we know where the facts truly lie? We are in a world where an expert in evidence-based practice for 30 years can be “fact checked” by an unnamed employee, on the basis of the current paradigm. Indeed, the British Medical Journal (BMJ) itself has been fact-checked (see here and here). This leaves us in a knowledge desert, where none of us can know fact from fiction with many an expert voice silenced.
P’s sister, CT, started with the view that it was this vaccine that she did not trust, from a concern that it has not been widely used and reviewed as yet. This is entirely reasonable given that there was such a short time from developing and trialling the vaccine to its widespread use. When it was being rolled out, I think most of us believed it would be used for those at highest risk and not on low-risk young people – as serious side effects would most likely be much higher per life saved in the young.
I would agree that some of P’s sister’s arguments are likely to be a misreading of the statistics. It appears to be clear that those who are vaccinated are at much lower risk of dying of COVID-19, but there were more vaccinated people in ITU with COVID than unvaccinated, simply because so many people had been vaccinated by then. On the other hand, what we don’t know is the true effect of the vaccine on all-cause mortality, if, as Professor Fenton describes, there has been widespread misrepresentation of vaccination status.
That CT changed her tactics to looking more at best interests, rather than problems with vaccination, seems to me a straightforward and sensible thing to have done, given she realised that the initial approach would not work. I don’t see this in anyway as disingenuous. It seems quite reasonable, particularly as she was a litigant in person and did not have a legal expert to support her preparation.
Dr Rogers, GP
From what was written about Dr Rogers, I also feel sympathy for his position. For me it is not at all illogical or “ironic” that he should want to help out in a health crisis to take up his registration again to help his colleagues. Indeed, it is entirely logical. One set of beliefs about helping in a crisis does not mean one has to believe everything that comes out from the authorities about that crisis.
What is striking is that we failed, in most countries, to protect the very elderly and very vulnerable. The suggestion to put in focussed protection for these groups was dismissed, perhaps causing terrible loss of life. Dr Rogers supports the use of Ivermectin for the treatment of Covid, it having shown some promise last year. It was added to the PRINCIPLE trial run from Oxford University but the results have not yet been published, that I can find. There are articles in the scientific press that support its use, but on balance it looks like it is not effective, or sufficiently effective, to be used – unless further evidence comes to light. Given that there isn’t yet an answer to the Ivermectin question, and the questions over the effectiveness and harms of lockdown, judging him for his view about these seems a little premature.
Dr Rogers is indeed on the team of the UK Medical Freedom Alliance. I had not come across this group before, but they certainly have a point that we should be fully informed, free to accept or decline intervention, there should be absolute transparency on drug and vaccine data, and that there are ways we could have handled this pandemic better. The information on their website is certainly compelling and concerning if genuine, as it appears to show that the responses to COVID did very little indeed. Questioning the current pandemic paradigm might look entirely logical given the inconsistencies of the data, particularly as much has not been published, either from censoring of information or from lack of transparency from the pharmaceutical companies. This of course is difficult to prove, but is not unknown in medical science, as seen in the long-running battle of the BMJ editor to get the full information about statin trials run by the drug companies.
Dr Rogers’ statement on COVID-19 not being a disease of the young is broadly correct, certainly at the start of the pandemic, and we knew this from the information we had from China two years ago. It is still the case that COVID-19 is causing very little disease in the very young, although it is causing infection. Those who do poorly are children with underlying health problems which makes them very vulnerable, and for these it seems sensible that they should be vaccinated. Dr Rogers also describes the vaccine as being ineffective – which is only partially true in that it doesn’t prevent infection. It does appear to prevent serious illness given that it is almost universal that it is the unvaccinated in ITU with COVID-19. (It is probably not surprising that the COVID vaccinations are not sterilising, in other words they do not prevent infection, given the failure to find a vaccine against the common cold, for example, and other coronaviruses, thus far; indeed, perhaps it is surprising that COVID vaccines work as well as they appear to.)
Dr Rogers is not an expert in any particular field, being a GP. GPs are, at their best, advocates for the individual person based on their individual needs and beliefs. Even retired, he was probably more of an expert than the people in the court room.
Returning to P’s sister…
I don’t think that criticisms of P’s sister are entirely justified. CT would have liked P to have one blood test rather than vaccination, which is not a straw man argument; his having three vaccines, including booster, could be much more distressing than one blood test. Sadly, blood tests are not guaranteed to demonstrate prior infection (they usually look for antibodies only rather than other markers of immunity), so he may have ended up with the blood test as well as vaccinations.
If one starts from the principle that the risks are fairly well balanced, as I have tried to argue, CT’s answers become entirely reasonable. I am not surprised she feels bullied and victimised, as the questions aren’t that relevant to P’s situation, but more to a general risk of COVID to the wider society. So even with the inquisitorial court proceedings, CT will be affected by the accepted paradigm and feel that she has to fight from a “child ego state”.
It appears to me, reading this case report, that all the bloggers were critical of CT. This might be that I am reading it from the position of understanding her view, given that I am not a fan of vaccinating someone who probably won’t benefit and might be harmed. But the information that Celia reports (in one section of the the blog) regarding CT’s scepticism of childhood vaccinations brings another layer to this case. It appears that CT does not trust any vaccines, even ones that have been proved to be safe, effective and neutralising: some of the most important ones worldwide are polio and measles, both of which cause devastating illness in the very young. This undermines her case that her argument is purely about the COVID vaccination. Yet she still had a valid case that it wasn’t necessarily in P’s interests to be vaccinated, or at least, that it was finely balanced.
It is a reasonable conclusion, as argued above, that P is likely, given his prior exposure to COVID infection, to be more at risk from vaccination than from re-infection, even with waning immunity or a more pathological strain.
Along with many people in the country who have had one or more mild or asymptomatic infections with COVID, vaccination of P appears to be a waste of effort and resources when at that time we could have been concentrating more efforts on vaccinating the elderly, frail and sick who couldn’t get to vaccination centres.
Vaccination appears to have been a good tool to build immunity and prevent deaths in those at risk of severe illness. Whether it has helped us to transition to living with an endemic virus I don’t believe is clear. There are still some scientists and doctors who appear to believe that having a vaccination reduces the risk to other people, but the Omicron wave has demonstrated this is not the case given the incredibly fast spread at the end of last year. When the Secretary of State decided not to mandate vaccines after all there was an outcry on Twitter, even from doctors, that they would not want to be treated by an unvaccinated health care worker – this without evidence of harm to others from unvaccinated people.
CT is trying to do the right thing for her brother, and I can see her rationale. However, the case was only ever going to be found in favour of vaccination, so she put herself through quite a bit of trauma for no likelihood of the outcome she wanted.
But the major issue here is that we are not a nation, a world, where scientific debate is being allowed at the moment, where differing interpretations of the data can be shared and debated in an open and constructive manner. We cannot know for certain where the reality lies; those who think they do are surely mistaken.
Let me be clear: I also do not know where the evidence points, because the evidence is not reliably available to examine. I do not know this because the supremacy of evidence-based medicine has been lost, which is personally devastating, as I wonder what will happen to evidence, debate, scientific method and freedom to explore uncertainty.
The Open Justice Court of Protection Project has published blogs about other vaccine cases.
The following paragraph is taken from a blog about a case (COP 12770223) before DJ Mullins via MS Teams on 23rd December 2021. It 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”.
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?”
Again, this is a disabled man who is managing well with the infection. As well as his disabilities he also needs kidney dialysis, so he is clearly a vulnerable person who we would expect to do badly from COVID infection: an early vaccination would have been sensible. But as it turned out, he wasn’t vaccinated and was not particularly unwell from the infection. Perhaps he was simply lucky not to have caught the infection until it was the Omicron variant; maybe he has inherited a robust immune system; maybe we are wrong about who is likely to do badly with COVID. Whatever the reason, now that he has had COVID, unless we see the return of more pathogenic variants, it would seem that COVID does not present such a risk for him that vaccination is definitely in his best interests. In the event of more pathogenic variants then all of us, vaccinated or not, could be at risk of illness. As reported in a subsequent blog post, however, the judge inevitably decided that vaccination was in his best interests.
In the fullness of time, I hope that some more settled science emerges so that we can learn what factors are important in a healthy immune system and how to manage a future pandemic more effectively to protect the vulnerable much better than we did in these last two years, while also preventing so much damage to people struggling in our wider society.
Alice Hodkinson is a GP in the East of England. She worked in Emergency Medicine (A&E) for most of the pandemic but is back now working in general practice. She completed a Masters in Medical Ethics and Law at King’s College London in 2018 and the Diploma in Tropical Medicine and Hygiene in 2021. She tweets @HodkinsonAlice
 Spicer et al 2022. Protective immunity after natural infection with severe acute respiratory syndrome coronoavirus-2. International journal of infectious disease. 114: 21-28; Gazit et al 2021. Comparing SARS-CoV-2 natural immunity to vaccine-induced immunity: reinfections versus breakthrough infections.; Abu-Raddad, L.J. 2021. Severity of SARS-CoV-2 Reinfections as Compared with Primary Infections. N Engl J Med 2021; 385:2487-2489; Kojima, N & Klausner, JD. 2021. Protective immunity after recovery from SARS infection. Lancet; West et al, 2021. A case of COVID-19 reinfection in the UK. Clinical Medicine (London) 21(1): e52-e53. Note: some of these publications would not have been available at the time of the hearing.
2 The Great Barrington Declaration shows there is no consensus from the scientific and medical communities that the measures put into law were reasonable and sensible.