By Celia Kitzinger, 14th January 2024 (updated 10th February 2024 after approved order was made)
It’s been a while since I’ve observed a contested hearing about COVID vaccination in the Court of Protection[1], and I was assuming they’d all worked their way through the system by now.
So, it was a surprise to log on to this – randomly selected – hearing (COP 14055966, 18th December 2023 before District Judge Spanton sitting remotely at Horsham County Court) and to find it concerned an unvaccinated protected party.
She’s is in her early thirties, with a learning disability, “autism spectrum disorder”, and epilepsy.
There’s no dispute that she lacks capacity to make a decision about COVID vaccination for herself – so a decision must be made in her best interests.
The position of the Integrated Care Board (ICB) – based initially on the evidence of the (now former) GP – has always been that it is in her best interests to be vaccinated.
When her mother disagreed, the ICB made an application to the Court of Protection in February 2023 for authorisation to provide the COVID-19 vaccine and subsequent boosters.
Nearly a year later, the matter is still unresolved.
The ICB is concerned because the protected party in this case falls into a group of people defined by the Joint Committee on Vaccination and Immunisation (JCVI) as high risk: she is on the Learning Disability register, and she is in a long-stay residential care setting.
The parents oppose vaccination. Their daughter has already had COVID (back in December 2020). She experienced only a mild illness.
In May 2023, a Harley Street test confirmed that as a result of that previous infection she now has T-cell immunity to COVID-19.
The parents have asked for a jointly appointed expert immunologist to give evidence about the risks and benefits of vaccination at this point, for their daughter in particular with her specific diagnoses and likely side effects, her known T-cell immunity and previous experience of infection, and in the context of the decline in severity of the virus from the time at which she was first infected to the present-day Omicron variant, which has a much lower infection fatality rate.
The hearing
The ICB was represented by Rebecca Blackwood.
The protected party, LC, was represented via her litigation friend the Official Solicitor by Helen Curtis.
The parents were represented by Francis Hoar of Field Court Chamber – a barrister we’ve watched before in vaccine-related hearings (e.g. “Cross-examining a GP in a COVID-vaccination hearing”). Francis Hoar has made quite a name for himself in relation to COVID-19, not just as a barrister representing the views of his clients, but also in publicly articulating his own views (e.g. in an article and a blog post challenging the legality of lockdown restrictions). He has acted in a range of COVID-related cases in other courts including R (Dolan) v Secretary of State, in which the Court of Appeal decided in December 2020 that lockdown regulations were within the government’s statutory powers and did not breach the European Convention on Human Rights. He has since acted in judicial reviews of regulations imposing travel regulations and mandatory vaccination of care home and (subsequently) NHS workers and of the lawfulness of child vaccination policies; and in a successful High Court appeal against the GMC’s restriction of the freedom of expression of a GP (see the BBC report here: “Hampshire GP’s Covid social media ban was wrong, court rules“)
The main focus of this hearing was the parents’ application for a jointly appointed expert immunologist.
The mother had previously made a virtually identical application in March 2023 and then again, jointly with the father, in September 2023. The judge, District Judge Spanton, had adjourned the application pending reports from LC’s new GP (the previous one having retired) and from LC’s treating neurologist. Those reports were now available.
The new GP says that it’s in LC’s best interests to be vaccinated – based simply on the ‘Green Book’ and JCVI’s recommendation that those who’ve previously had COVID-19 still benefit from vaccination.
The treating neurologist says that advice as to whether it’s in LC’s best interests to receive the COVID-19 vaccination “is not within the remit of a general neurologist”. She said: “I would respectfully suggest that the Court of Protection seeks advice from virology/immunology/infectious diseases experts …”.
These two reports don’t seem to have progressed matters much since the last hearing of 8th September 2023 – hence the parents’ renewed application for an expert opinion.
On behalf of the parents, Francis Hoar opened the case for appointing an expert:
Francis Hoar: The treating neurologist has given evidence that the questions raised are outside her remit.
Judge: It rather occurred to me you said that would be the case at the last hearing. And I said, “No, no, we surely need to hear from the neurologist”, and you might be tempted to say, “ I told you so!”.
Francis Hoar: Not at all. I thought it was a very resource-aware decision on your part.
There followed some discussion about whether or not an expert was really “necessary” – which is the test for appointing an expert under the COP rules (15(3)). The ICB suggested that it wasn’t.
Judge: On the last occasion, the court said a neurologist was needed and so she was consulted. And she responded and said, “well actually, I can’t answer that question – you need an immunologist”.
Rebecca Blackwood: It’s not whether Dr A [the treating neurologist] says you need expert evidence. It’s whether you say it’s necessary.
Judge: But the court formed the view it was necessary to get a neurologist to answer these questions and the neurologist said, “you need an immunologist”.
Rebecca Blackwood: It’s whether you need it. The court may like to have it – but it’s whether you need it.
Judge: I understand the point. I was looking at it as a logical point-by-point stepping stone.
Rebecca Blackwood: The ICB questions whether expert evidence is necessary for the court.
The Official Solicitor (representing LC) shared the ICB’s scepticism about the need for expert evidence, arguing that the court could reach a best interests decision without further evidence, but took a more “nuanced” position. She acknowledged the “caveat” of Dr A, as the treating neurologist, in recommending consultation with an immunologist as a means of “keeping – if I may characterise it this way – an arm’s length distance…”. This, she said, “does provide the court with some leeway for finding that the immunology expertise is in fact necessary…”.
The judge decided that it was necessary to instruct an expert – considering it both proportionate and necessary to do so, especially considering that “the report itself is going to be obtained swiftly, it’s not intrusive to LC … [and] the court had formed the view that a neurology report was necessary and has regard to the neurologist’s view that an immunology expert is necessary to assist the court. The court does not follow that advice blindly but considers it is in the best interests- sorry, it is necessary for an expert to be appointed”. He ruled that the cost should be borne equally by the OS, the ICB and the two parents, with each party paying a quarter.
The hope was to get everything in place for a hearing on 19th January 2024 (11 months since the ICB determined vaccination to be in LC’s best interests). In fact, as it turned out, the hearing was vacated (i.e. it didn’t happen) because agreement was reached outside of court and the agreed Order was approved by the Judge.
Given that the hearing had been vacated, I requested a copy of the approved Order so that I could find out what had happened. We’re entitled to the approved order for any public hearing under under COP rule 5.9 which says: “(1) Subject to rules 5.12 and 4.3(2), a person who is not a party to proceedings may inspect or obtain from the court records a copy of any judgment or order given or made in public.“ I was grateful to be sent it in a timely fashion.
What I discovered from the approved order was that it turned out that the expert report had concluded that it was not in LC’s best interests to receive the COVID-19 vaccination and subsequent boosters. Nobody objected to that assessment, so LC will not be vaccinated – and that was the end of the proceedings.
Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 500 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia
[1] We’ve published many previous blog posts about COVID vaccination, including: On not allowing the strong views of family members to prevail: A COVID-19 hearing; Covid vaccination contrary to parents’ wishes; The politics of the pandemic in the Court of Protection; Covid vaccination and a Christmas visit; Cross-examining a GP in a COVID-vaccination hearing.
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