By Celia Kitzinger, 4th February 2022

Editorial note: The judgment is published here: A CCG v. DC & MC & AC [2022] EWCOP 2. The parents subsequently appealed the decision, and the appeal was heard by Hayden J MC & Anor v A CCG & Anor [2022] EWCOP 20. (See postscript to this blog for what happened.)

The parents of a 20-year-old profoundly learning-disabled man (DC) asked the judge not to make the declaration sought by the Clinical Commissioning Group (CCG) that it was in their son’s best interests to receive COVID-19 vaccination.  They believe there is insufficient medical evidence to justify vaccinating him.

The advice to vaccinate DC came from a GP, Dr H, who is also employed by the CCG in a management role with responsibility for vaccine roll-out in his area.  This GP had first made contact with the parents in February 2021.  He discussed their concerns about COVID vaccination, and they were “unconvinced” that vaccination was in their son’s best interests. 

There was then a substantial delay before the matter reached court. This is a common feature of the COVID vaccination cases I have watched.

The matter came up again in July 2021 as part of a routine review, and led to a best interests meeting involving DC’s parents, his continuing healthcare case manager, representatives from his care home, and Dr H. 

The parents oppose vaccination on the basis of its potential risks and what they consider to be an insufficiently individualised risk assessment. They’re concerned about myocarditis as a side-effect of the vaccine (especially given their son’s family history of heart disease).  Because of their son’s very low body weight, they believe that – if he has to be vaccinated – a ‘child’ dose (i.e., a third of the adult dose) would be safer. They also want their son to have a blood test to establish whether he has natural immunity: he may not need the vaccination after all. The CCG has refused both a ‘child’ dose of the vaccine, and a blood test to check for antibodies^[1]. 

Since it had not proved possible to resolve the issue, the CCG applied to the court in early December 2021 and the hearing was initially listed for 17^th December 2021.  Due to funding difficulties, the Official Solicitor was unable to instruct solicitors or counsel to attend the hearing, so it had been relisted for January 2022.

The case (COP 13860597) was heard remotely before His Honour Judge Burrows, sitting at Manchester Civil Justice Centre on Monday 17^th January 2022. 

There were a lot of things happening in this hearing that I found of interest (listed below), but I’m only going to write about the first of them in this blog post:

• Cross-examination of the GP by counsel for DC’s parents – the focus of this blog post
• Cross-examination of DC’s father by the other parties – with counsel for the parents raising “objections” to several questions (for another blog)
• Contradictory claims from different advocates as to whether DC (who has never had capacity to make medical decisions) would decide to be vaccinated if he were able to do so.  In this hearing, as in others I’ve observed, counsel made efforts to ventriloquise an imaginary capacitous DC – sometimes literally putting words into his mouth, eg. “As his Dad, can you not see some circumstances in which DC might say ‘actually I don’t want to risk being one of those people who succumbs to this and dies of it’?” or “Would DC have decided ‘actually I would quite like to know if I have natural immunity?’” and “Would DC have said, ‘I want to examine why people of my weight mostly have a lower dose’ – my submission is he’d be concerned about that”.  It was hypothesised that a counter-factually capacitous DC would be strongly influenced by his parents (and sister), none of whom had been vaccinated, and would, like them, decide against vaccination – especially as “he’s only alive now, at the age of 20, because of his parents’ care, so he would give a greatly enhanced weight to their views” (counsel for the parents).  Alternatively, it was suggested that, at 20, he is at the age at which children tend to rebel against the position taken by their parents, or simply form different views. Or that he’d altruistically decide to be vaccinated from “community spirit” to prevent transmitting the virus to others in his care home. Or that he’d choose to be vaccinated so as to be permitted to engage in community activities and avoid being isolated. I notice that some of these speculations made their way into the judgment.
• Lack of clarity concerning substituted judgment vs. best interests. Counsel for DC’s parents proposed that the weight that DC (if he were capacitous) would give to any given argument for or against vaccination “is the weight Your Honour should give it, because Your Honour is stepping into DC’s shoes”. In his closing submission, counsel informed the judge that he should “stand in DC’s shoes” and make the decision that DC would make, drawing on Montgomery as evidence that “individuals have a number of different reasons for making decisions”.  In his closing summary he referred the judge to §20 of his position statement: “the substituted judgement that must be made on behalf of the patient is one in which the court seeks to put itself in the shoes of the patient and make the judgement he would be likely to make even if, as in DC, he has never had the capacity to make those judgements before. This is not the same as the court substituting its own view of what is in DC’s best interests”.  Counsel for the Official Solicitor said, in her closing statement, that although counsel for the family “repeatedly refers to the court putting itself into DC’s shoes, of course that’s not the test for best interests” – and followed this up with a long extract from Lady Hale in the case of Aintree v James [2014] AC 591 (also picked up in §26 of the published judgment).

A proper expert?

Dr H is a General Practitioner and adult safeguarding lead at his practice. He is also the Medical Director at the CCG and responsible for the roll-out of the vaccine in the CCG’s area.

The parents’ view is that the GP, Dr H, the only medical expert involved in making the best interests decision, and the only medical expert before the court^[2], does not have sufficient expertise or detailed knowledge of their son.  They asked for adjournment so that that an appropriate expert could be appointed. 

They described Dr H’s best interests assessment as “formulaic”.  The nineteen questions they had submitted to him “have largely been unanswered at the best interests meeting and since” – possibly because Dr H is unable to answer due to “his lack of involvement in DC’s care”. In their view, Dr H “does no more than repeat government guidance which is directed at the generality of individuals of DC’s age and which cannot bear on the individual question of DC’s best interests”. 

They had hoped to find independent experts: a paediatric respiratory physician to report on the particular effects of DC’s medical conditions in considering the risk/benefit analysis of vaccination; and a toxicologist to report to the court as to the relevance of DC’s low body weight to the dose he should receive (if the judge were to decide on vaccination). They have not been able to locate relevant experts for their case.

Having failed to find experts themselves, they were now seeking a s.49 report instead, because (as their counsel put it)  “if Your Honour makes an order, they don’t have a choice. They have to identify someone”.  The judge pointed out that this begs the question as to whether there is an appropriate expert and could lead to “a wild goose chase by proxy”. 

The CCG saw no need for additional expertise. They took the position that the treating GP was “precisely the right level of person” to make a judgement about whether or not vaccination is in DC’s best interests and that “only when relevant counter-indications are identified” should a different expert be involved: in this case there are no “relevant counter-indications”.  

Counsel for the parents had also filed statements relating to other cases, some of which they wanted to be admitted as evidence.   These statements appeared to the Official Solicitor “be to fulfilling the function of expert evidence despite which none of the various statements has been filed with the court’s permission or in the prescribed form…”.  Two were statements from Clare Craig and Dr Peter McCullough filed in entirely separate judicial review proceedings (R (AB) v Secretary of State for Health) which challenged the authorisation of COVID-vaccines on people under the age of 18. (Permission for judicial review had been already refused on the papers).   Another was a statement from Marek Pawlewski in an injunction application in the High Court matter of Dr Sam White v Stephen Lightfoot, on data about the risk of certain batches of the vaccine appearing to cause a greatly elevated risk of death.  The Official Solicitor did not see the relevance of these statements, one of which is “more on the broad issue of government roll-out to adolescents and is not concerned with adults like OB”, and another of which is “of unknown provenance” from someone who “prefers not to say where he works” and describes himself as “a data scientist”. She did not want to “allow collateral challenges in ongoing JR proceedings to colour decisions about what is in DC’s best interests”.  Additionally, the CCG was concerned that this evidence could not be tested in court via cross-examination.

Failure to comply with court rules for expert evidence is common to several of the  COVID-19 hearings I’ve observed (see also “Naming a putative ‘expert’ in a COVID vaccination case” and “The politics of the pandemic in the Court of Protection”) though none has as yet been as explicitly in violation as the doctor permitted (extraordinarily) to give evidence in the case of  Z v University Hospitals Plymouth NHS Trust & Ors (Rev 1) [2020] EWCOP 69).   

The outcome was that the judge did not agree to adjourn the hearing – not least because the case had taken so long to reach court in the first place, and was now urgent (he said), given the risk of serious illness or death to DC. He also decided that the additional material submitted by the family was not admissible as evidence. He left open the question of whether or not he would make a s.49 order (i.e. ask the CCG to locate a relevant independent expert), but ultimately concluded that this was not necessary.

The question of whether or not Dr H was an appropriate expert in this case was – as will be shown below – an issue the parties tackled in oral examination.

Position of the Parties

The three parties in the case were the applicant CCG, the protected party DC via his litigation friend the Official Solicitor, and DC’s parents. 

There was no dispute that DC lacks capacity to make decisions about his care and treatment, including COVID vaccination: final declarations regarding DCs lack of capacity had already been made following the December hearing.  

The sole focus in this hearing was on whether or not vaccination was in DC’s best interests.

The CCG’s position

The CCG (represented by Philip De Berry) believes DC is at risk of becoming very ill if he contracts COVID and so it’s in his best interest to be vaccinated with an adult dose of the Pfizer vaccine in line with the professional opinion of Dr H, following government guidance. 

Counsel referred to Hayden J’s judgment in SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14 and said it was “not the court’s role to arbitrate between different medical opinions” ^[3] (e.g. concerning vaccine dosage).  The applicant’s submission was straightforward, he said:

“DC fits clearly within the parameters of public health guidance.  He is plainly clinically vulnerable – by reference to three separate factors: respiratory illness, neurological impairment, and learning disability. There is no dispute that he is vulnerable to COVID because of these three features. The clear public health advice is that he should be vaccinated in the absence of any contraindications, as set out clearly in the Green Book.  The contraindications don’t apply to DC. So, the case is clear and straightforward that vaccination is recommended based on public health advice and the court doesn’t need to look beyond that.”^[4]

The Official Solicitor’s position

Counsel appointed by the Official Solicitor to represent DC’s best interests, Nicola Kohn, also took the position that he should be vaccinated against COVID-19 as soon as possible to protect him against serious illness or death.

She pointed out (in response to Philip De Berry) that the court does adjudicate between competing medical views – in serious medical treatment cases, for example.  But it is somewhat different to ask to the court to adjudicate between competing theories that are (a) not presented via live evidence (and so cannot be cross-examined) and (b) not presented by clinicians who are proposing to give such treatment.  She referred to the case of Re AVS, in which the judge had considered the matter of receiving evidence on a treatment (in that case, Pentosan Polysulphate [PPS]) that no one was actually proposing to offer:

“… it strikes me as unlikely in the extreme that the court would order a clinician to undertake a medical intervention which he, the clinician, did not believe to be in the best interests of the patient. Absent a clinical opinion that the continued administration of PPS would be in the best interests of the patient, therefore, it seems to me that the current proceedings would be doomed to failure.” (§24 Re AVS)

The point, she said, was that it may be appropriate for the court to adjudicate between competing clinical options proffered to the court, but it is “trite law” (that’s the lawyerly way of saying everyone already knows this!) that the court can only decide between available options, and cannot adjudicate between competing theories.

“The competing options, for me, are either that DC has or doesn’t have the vaccination?”, asked the judge.  

The Official Solicitor confirmed that was the case.  “There is a suggestion in the parents’ evidence that there should be a consideration of Ivermectin, notwithstanding that it is not an authorised treatment in the UK.  And a re-evaluation of the vaccination based on DC’s weight and an adaptation of the dosage. With respect, the court is quite right. The only options are authorisation of the vaccine as offered, or not.”

The parents’ position

The parents were represented pro bono (i.e., without having to pay for their legal team) by Francis Hoar of Field Court Chambers.  

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. According to his website, he “is currently acting in a Judicial Review of the original ‘quarantine’ regulations (now before the Court of Appeal), a claim against a school trust’s mask policy and an impending claim against a care-home’s vaccination policy” (accessed 29^thJanuary 2022).  

He’s not a barrister I’ve seen before in the Court of Protection, and (as I’ll illustrate in this report) his style of advocacy was considerably less “inquisitorial” and more “adversarial” than is usual in this jurisdiction.

The parents’ position as expressed in their position statement, and as it emerged over the course of the hearing, was that their son should not be vaccinated against COVID because DC is not at any great risk either of contracting COVID, or of becoming seriously ill if he does, and that the risks of vaccination for someone with their son’s complex medical conditions outweigh the risks of contracting COVID.  They made the following claims:

• DC is unlikely to contract the virus because he’s unable to move without assistance, which means that (unlike people in other vaccinations cases before the court) there is no risk of his being unable to be distanced from people known to be infected or who appear to have symptoms.  
• DC is unlikely to become seriously ill if he does contract COVID because of his age cohort: the government’s Green Book estimate of the infection fatality rate for young persons between the age of 15 and 44 – including those with pre-existing conditions – was one death for every 2,932 young people infected.
• DC is at risk of side-effects from vaccination, especially of myocarditis and blood clots (there’s a family history of heart problems and strokes), and there may be other medium- and long-term side-effects that aren’t yet known because the vaccines are still in an  “experimental” phase.
• The CCG proposes administration of the adult dose of vaccine, but DC (despite being 20 years old) weighs only the same as an average 10-year-old child (around 31 kilos). His parents consider the adult dose of the vaccine to be potentially dangerous (but the CCG refuses to vary the dose).
• Proper analysis of the risks and benefits of vaccination for DC requires a blood test to establish whether he has natural immunity. (The CCG has refused this.)

In addition, they had apparently raised the possibility of alternative treatments (Ivermectin was mentioned) although this was not before the court.

Counsel “accepted fully” that there were only two options before the court: [1] To vaccinate DC (with the dose proposed by the GP) and [2] not to vaccinate him.  

“Insofar as Your Honour will be satisfied that there is not sufficient evidence that it’s in DC’s best interests to make the order requested – which is for two adult doses, plus booster, plus further doses in line with government policy – there is no middle ground to administer a child dose.  The only option would be not to vaccinate if Your Honour decides it’s not in DC’s best interests to receive all the standard doses. Insofar as Ivermectin is concerned, there is no application from the family for alternative treatments, but it may be that Your Honour considers the treating physicians to have not sufficiently considered alternative treatments, and that it’s therefore not in DC’s best interests to vaccinate him. There is no competing medical evidence before the court.  What we have here is simply an assertion of government guidance by doctors, and on the other hand scientific evidence of the risks of myocarditis, yellow card effects and so on.  That’s not competing medical evidence. It’s simply evidence that’s not refuted by other evidence before you. I accept that as you don’t have experts before Your Honour, you can’t make determinations about natural immunity.  I invite the court to note that one of our points is that it is not in DC’s best interests to give the vaccine without testing for natural immunity because if he does have natural immunity then vaccination would not give a benefit.  We invite the court to make an order not for vaccination or to make an order for vaccination conditional upon DC not having natural immunity.”

Evidence from the GP 

I am writing this blog report having just attended a weekend workshop organised by Inner Temple on advocacy training for Bar students. I was there to talk about open justice, but one of the things attendees were learning – and I was learning alongside them – was how to cross-examine witnesses. Consequently,  I am looking at my record of this cross-examination in a new light^[5].

The aim of cross-examination is to elicit information that can later be used in closing submissions.  Successful cross-examination is often said to include:

• Ask only questions to which you already know the answers.
• Don’t ask the witness to report again on material covered in their written witness statement (there’s a risk of them saying something different!) but you can ask them to confirm parts of their written statements.
• Only ask about one fact per question.
• Keep questions short and to the point.
• Ask only questions that lead to information you want to use in your closing submission.
• Ask only ‘leading’ (yes/no) questions. (Apparently some law schools are requiring tag questions – “isn’t it?”, “aren’t they?” etc – in all cross-examination, though this practice was not endorsed by the barristers present at the weekend event.)
• Keep control of your witness: don’t let them make speeches or ramble (obviously yes/no questions help with this).
• Use plain English (avoid Latin and fancy legal terminology).
• Know your way about the bundle so that you can quickly take a witness to relevant statements.
• Begin and end your examination on a ‘winning note’.

The cross-examination of the GP in this case seems in many ways to exemplify the principles students were taught at the Inner Temple advocacy weekend, and it was exciting to see ‘real life’ examples, to flesh out the role-play.

Cross examination by Francis Hoar (for DC’s parents)

The cross-examination by Francis Hoar was  notably less “inquisitorial” and much more “adversarial” than is commonly the case in the Court of Protection.  

Here’s how the cross-examination began. I’m guessing that the ‘winning note’ is to discredit the GP’s knowledge of his patient.

FH:  Your involvement with DC started in early 2021.

GP:  Yes

FH:  And you have confirmed that you have not seen DC.

GP:  Yes.

FH:  And you haven’t treated DC for anything, is that right?

GP:  No. I have treated him for a number of minor issues, but I haven’t seen him face-to-face.

FH:  And your colleague, Dr Y, has also treated him, also remotely, for skin issues.

GP:  Yes.

FH:  But neither of you has treated him for anything related to his chest or neurological issues.

GP:  Correct.

This interaction casts doubt on how well the GP knows the protected party at the centre of the case, thereby undermining his expertise and damaging his credibility: he’s never seen DC face-to-face, and neither he nor his GP colleague have ever treated DC for the medical problems that may have the potential to cause difficulties with the vaccine (or serious illness with COVID infection).

According to the parents’ position statement: “the only clinician who was present [at the best interests meeting] was Dr H, who does not appear even to have met DC before the meeting… It does not appear that the specialist Consultants who lead the delivery of DC’s care were consulted and they did not attend the meeting”. 

Cross-examination seems designed to underscore that point.  Here’s how it continued:

FH:  Turning to the best interests meeting notes [of 24^th September 2021]. You see the list of participants. You were the only medical practitioner there.

GP: Yes.

FH: You said to the parents that you had no doubts that the potential benefits outweigh the risks of vaccination.  

GP:  Yes

FH:  You said that 9 out of a million had a risk of serious thrombo-embolic events.

GP:  Yes.

FH:  When you said that, what information did you use to make that statement?

GP:  The Joint Committee on Vaccination and Immunization guidance.  As a GP, I work to the guidance I’m given. The reading I’ve done supports that that’s correct, but I’m not going to pretend I’m an expert.

[…]

FH:  Did you mention at the meeting the elevated risk of myocarditis?

GP:  No. At the time we had that meeting the risk of myocarditis was unclear and unquantified. It has come to prominence since that meeting.

FH: That’s not correct, is it.  Elevated risk of myocarditis was specifically mentioned by the JCVI on 3^rd September and it was one reason why the JCVI said that although there was a marginal benefit, the risks were not quantified and so they couldn’t recommend the vaccine for 12-15-year-old children^[6]. Is that fair?

GP:  I don’t see how that’s relevant since OB is not 12-15.

So, now it appears that not only does Dr H not know his patient very well, but also he doesn’t regard himself as an expert on the side-effects of vaccination. Counsel goes on to cast doubt on his understanding of the evidence behind the JCVI guidance which Dr H is charged with implementing.  According to Francis Hoar (although he didn’t provide the source of this information), at the time of the best interests meeting at which the GP has said he did not mention the elevated risk of myocarditis, there was evidence in the public domain of myocarditis in young men of DC’s age, and this evidence had been “relied on” by the JCVI.

FH:  Were you aware that the evidence on which the JCVI relied was extended to ‘young men’ including those over 20 years old?^[7]

GP: No. I wasn’t following information about younger people, because it wasn’t relevant to my practice. I was not undertaking vaccination of that age group at that time.

FH: So it’s right then, isn’t it, then, at that meeting, when you were discussing DC, his weight is the median weight of a 10-year-old boy. Do you agree?

GP: I was treating a man of 20.

FH: I wasn’t asking you that Doctor. I am asking you about his weight.

GP:  I don’t have that data to hand. I don’t doubt it, but I don’t know.  

FH:  Let me take you that [in the bundle]. This is taken from public domain sources and shows that 30kg is the median weight of a nine-and-a-half-year-old boy.

GP:  That is the correct reading of that graph.

FH: So, we have a 20-year-old with the weight of a 10-year-old.  You did not inform yourself of this prior to the meeting.

The GP is beginning to sound somewhat truculent and defensive by this point and the judge intervenes.

Judge:  Can I stop you there Mr Hoar. This doctor has been very candid. His role is to roll out the vaccine. He bases his decision-making and the information he gives to those who would be receiving the vaccine on the JCVI guidance. You said that in relation to 12-15 year old children, on 3^rd September, the JCVI had indicated there might be a problem of myocarditis and the evidence relied on by the JCVI indicated that it might also be the case for young men.  Was the JCVI guidance also warning that young men might be at risk of myocarditis?

FH: As far as I know there wasn’t JCVI guidance relating to 18-plus young men, no.  But on the other hand, it was in the public domain, and recognised by the JCVI that the risk pertained to young men and not just boys. I agree that no criticism can be made that he wasn’t aware of that. But what I’m suggesting to you, Dr H, given that we have a particularly vulnerable young male and his parents are not thinking it was in his particular best interests, is that it was up to you to be up-to-date with the evidence for him.

GP: My responsibility as DC’s GP is to try to find what it in his best interests. As it clearly says in my statement, I balanced the risks of the vaccination and the benefits of the vaccine and they very much stand in favour of vaccination. I acknowledge I was not aware of the specific risk of myocarditis.  It was not raised in that meeting, as I recall it.  

FH: It was raised at that meeting.  Please turn to the second page of those minutes.  [DC’s father] explained his thinking and had looked at the safety trials and asked about myocarditis.

GP:  I apologise. It was mentioned but it didn’t really register with me. I do apologise.

The effect of this series of question is to suggest that the GP took what could potentially be characterised as a rather cursory approach to establishing his patient’s best interests. The father’s concern with myocarditis, specifically raised at the meeting, “didn’t really register” with him, and he’s found himself having to apologise for having forgotten about this. He did not follow up on the father’s concerns by reading up-to-date evidence on myocarditis. 

In the following exchange, counsel for the parents adds to this implied criticism the fact that the GP did not report age- and disability- stratified risks for myocarditis, but rather relied on a population-wide statistic.

FH:  Dr H, your recommendation was ‘it’s obviously in his best interests on a risks-benefits analysis’? I put it to you that the only way you can arrive at that conclusion is to put on the one hand his risk of being infected and becoming very ill versus on the other hand the risks of the injection.

GP: Yes.

FH: So you have to take into account the age- and disability- stratified risks.

GP: Yes.

FH: So it’s not appropriate, I suggest, to say “a nine in one million” chance of myocarditis, which is across the whole population, when the risk may be very different for different stratifications. Do you agree?

GP: Yes, but that stratification wasn’t available at that time. I have to be pragmatic. I have to manage my time.  I have to share the guidance shared with me.  When JCVI think the risks are of sufficient importance to be part of my consideration or informed to my patients, I do my best to do that.

At this point, it seemed to me as an observer that counsel for the parents abruptly changed direction and asked a question that (to me) seemed to come out of the blue.

FH: Are you aware of the Montgomery and Lanarkshire Health Board^[8] case on informed consent, which meant a less paternalistic approach to patients?

GP:  I am aware of my responsibilities around informed consent.

FH:  Are you aware of the Supreme Court case?

GP: It was not in my mind at the time but I was aware that there had been a Supreme Court case.

FH: And that this means that the Bolam test would no longer apply.

GP: Yes, because the guidance changed.

FH:  So you have a responsibility to provide – absent informed consent from the patient – information to the people who would decide, namely his parents^[9].

I was rather thrown by these questions about informed consent, since there was nobody to “consent” in this case (certainly not the parents), but rather a best interests decision to be made. Unless I have misunderstood, the point seemed to be that the GP had not provided sufficient information about the medical risks of vaccination to the parents. But they are not proxy decision-makers for DC. I was puzzled by the relevance of Montgomery in this context and posted a question on Twitter about this: “It’s not really relevant as it is about consent from people with capacity”, responded Victoria Butler Cole QC (@TorButlerCole): “There is a more obvious point which is that to contribute an informed view to a best interests process you need to know the relevant risks and benefits of the treatment in question to the person concerned.”

The overall direction of questioning aimed at demonstrating the GP’s lack of “expertise” when it came to deciding whether or not DC should be vaccinated concluded like this:

FH:  We are talking about an extremely complex patient. Not an average 20-year-old man, or someone with one or two conditions, but a multiplicity of conditions. Do you agree?

GP:  Absolutely.

FH: You said the aim is to vaccinate all adults in the population – again you generalise.

GP: Yes.

FH: You can only give the generality of the advice. What you couldn’t do is give an evaluation based on DC because you hadn’t seen him. It was based on your experience as lead clinician in the roll out of vaccination for adults.

GP: Yes.

FH: You’re not an expert paediatric physician or paediatric neurologist. Is that right?

GP: Yes.

Counsel for the family then asked a series of questions that seemed directed to specific concerns the parents had raised.

The parents took the view that DC was not at risk of becoming seriously ill because he is so young. Counsel asked the GP whether  “the age curve applies” whether or not there are other medical conditions – “so someone like DC, with his conditions, but older, would be at greater risk” (“yes”).  

The parents wanted DC to be tested for natural immunity.  Counsel asked the GP about the general principle relating to natural immunity and vaccination, referring to the Heaf test:  “daisy pricks to ascertain natural immunity so you wouldn’t need the BCG injection – it’s not a novel position, is it” (“not at all”).  Have you evaluated the evidence about natural immunity and vaccination?  (“I didn’t have any evidence: we were on a learning curve”).

The parents believe that DC is not at risk of contracting COVID because he can readily be “socially distanced” from others (also meaning that he is unlikely to infect others).  Counsel questioned the GP about the safety of other residents in DC’s care home, stating that this should not be part of a best interests consideration.

GP: Well, there are multiple consequences for him of not being vaccinated. His ability to socialise with other residents is impacted upon by his vaccination status.

FH: That’s a decision of the care home though, isn’t it.

GP:  Yes, I’m not passing judgment. I just stated in the meeting that it might impact on other aspects of his care.

FH: DC is immobile.  Given that he cannot move around save with the help of others, there can’t be any concern about social distancing.

GP: I don’t know enough about the movement of people into the communal areas and the movement of people around the building, so I don’t know enough about how it might impact on his quality of life. His interaction with others may be less.

FH: Given that he cannot move save with the help of others, and given that we know that vaccinated people in the care home have had COVID over the Christmas break, why – looking at it from a medical view – why should DC have to be isolated when he returns from visiting family, when others would not.

GP: That’s the JCVI guidance.

FH: Do you agree with it?

GP: It’s not my job to agree or disagree with it. The guidance is written by people who are better educated than I am.

Later questioning moved to point out an error in the GP’s witness statement, and to explore the consequences of the way that COVID vaccination is currently licensed for use.

FH:  You said the vaccines are lawful but that clinical trials will end in 2022.  It’s 2023.

GP:  I don’t doubt your information.

FH:  As a result of the authorisation, it’s not possible to sue the manufacturer if there are adverse consequences, except under very special circumstances.  And government compensation is limited to £120,000^[10].

GP: Yes, the only person you can sue is the government.

Judge: There were two questions. The question was whether the fact that this vaccination has been brought in under circumstances where is there a special exemption from civil liability – whether someone is consenting or not – is that something a reasonable person would take into account in deciding about vaccination?

GP: A reasonable person should be thinking about their health, not about financial consequences if they sue someone subsequently.

FH:  The 2015 Supreme Court decision in Montgomery means that it is not for you to decide what a reasonable person should or does take into account, or what they may think when making a decision. You need to give them all the information.  While your view is that they shouldn’t take into account that they wouldn’t’ be able to get compensation from the manufacturers, some people may disagree. So it’s important to inform people of their very limited right to sue.

GP: It’s not in the guidance that I should inform people of this.

Judge: The vast majority of people don’t sit down with a GP and discuss the risks and benefits of vaccination. They attend a vaccination centre and are provided with a sheet of information^[11].

GP: Yes, there’s always a clinical supervisor available.  Within that sheet, there’s nothing saying you’d not be able to sue the manufacturer if there were adverse effects.

Judge: So, if someone says “I’m happy to have this vaccine, but what I’m worried about is not being able to sue”, would you be able to explain?

GP: Yes. I’d say there is a very limited amount of government compensation and you can’t sue the manufacturer.

And the parents are of the view that their son should not receive the full adult dose of the vaccine due to his low weight. The GP pointed out that there is no lower weight restriction for administration of Pfizer in the official guidance: “I am there to apply the guidance, not to challenge it”. If the guidance were to change, then he would do “whatever JCBI is saying is most appropriate”. 

The final line of questioning from Francis Hoar – and the ‘winning note’ to end on – related to the failure of Dr H to consult with experts involved in DC’s care.

FH: It’s right to say that when DC was last seen by his respiratory consultant, neurologist, and physiotherapist – you didn’t speak to any of those before the best interests meeting.

GP: No.

FH: Or subsequently.

GP: No.

FH: And I’m going to suggest that you should have done, given the complexity of this patient and the fact that the vaccine is new.

GP: The experience of hospital specialists in relation to COVID vaccination is very low and the conversations I have had have been with my clinical colleagues in the vaccination service who have the experience of giving the vaccine.

FH: They don’t have specific experience of DC or his diagnoses. You and your colleagues in the vaccination service are simply going by government guidance, which is what you’ve being going by throughout.

GP: Yes. I’m a GP. I’m not an expert on everything.

One feature of Francis Hoar’s cross-examination is that at no point did he treat the GP as an expert – for example, by asking him questions about whether he’d expect DC to become seriously ill if he were to contract COVID, or what the likelihood is that DC already has natural immunity and the implications of that for decision-making about vaccination. Instead, Francis Hoar focused on how Dr H himself had behaved in the past – what he had (and hadn’t) said in the best interests meeting, who he had and hadn’t consulted – and asked about his knowledge of medico-legal matters (including correcting a factual error in his statement).  

Watching this cross-examination it seemed that the goal was very clearly to discredit Dr H as an expert. It did not seem that counsel intended to use anything Dr H might say in evidence as contributing to consideration of DC’s best interests. 

Correcting witnesses, telling them what they “should” have done, and phrases like “I put it to you…” are rarely deployed in the Court of Protection.  There’s another example of robust cross-examination (from Joseph O’Brien) in our blog post on “When expert evidence fails” which is worth reading for comparison. It was an effective demolition of expert evidence and led to a new independent expert being appointed by the court (who as it turned out came to the opposite conclusion about the protected party’s capacity).

In the current case, Francis Hoar’s cross-examination laid the groundwork for a significant part of his closing submission (the other significant part related to what DC would decide for himself in relation to vaccination if he had capacity to make that decision).

In his closing submission,  Francis Hoar said that the court “cannot put a great deal of weight on Dr H’s evidence”.  The reasons he gave derived in large part from this cross-examination.

“He did not consult with DC’s multi-disciplinary team. What he exhibited in evidence is that he is very familiar with giving normal guidance on vaccination regarding risks that are known, but not in giving specific advice to individuals he hasn’t seen and hasn’t treated, except for online in relation to minor issues.”

Cross-examination by Nicola Kohn (for DC via the Official Solicitor)

The Official Solicitor did some work to ‘rehabilitate’ Dr H as an “expert”.

Unlike counsel for the parents, counsel for the Official Solicitor treated Dr H as an expert able to answer questions about the risks and benefits of vaccination for DC.  For example:

NK: In your evidence this morning you said DC is ‘extremely vulnerable’ and quoted from the Green Book which shows he falls into three of the clinical risk groups: he has a respiratory condition, a neurological condition, and he’s in long-term residential care.  Can you elucidate for the court what are the risks to DC if he contracts COVID.

GP: That’s why I’m so categorical that the balance of is in favour of vaccination. Each of those vulnerabilities increases the risk of serious illness for him if he contracted COVID. The risks of vaccination that have been raised – they do exist but are tiny in comparison.

NK:  I don’t want to overplay it, and I know this is upsetting for the parents, but is there a risk of death?

GP: Yes. We’ve had a patient with less vulnerability than P in our practice die.

At one point she said he’d been “self-effacing in [his] evidence” – to Francis Hoar – in having said “I’m just a GP”.  She asked: “For how long?”  “Thirty years”, he replied.  

She also addressed the issue of whether he had consulted other ‘experts’ by asking him whether the members of the vaccination team (with whom he’d discussed this case) were – “civil servants or doctors?”.  The answer was that they were mostly doctors, plus some public health consultants.

So, on the basis of the Official Solicitor’s cross-examination, Dr H is an experienced GP who has consulted relevant medical colleagues about the case. 

When asked about the absence of evidence from any specialists, Dr H said, “the questions being asked are effectively challenging the scientists in the JCVI, rather than specialist doctors’ knowledge.  No other expert, unless they have a specific agenda would offer any other advice.”

In her final submission, the Official Solicitor accepted the CCG’s submission that “the GP is the correct discipline to assess whether DC should have the vaccine. There is no justification for any further medical advice. It is not at all clear who to ask, what to ask, how it would help, or how long it would take” (Philip de Berry).  She said likewise:  “this is not a case where we can say ‘oh, if only we had the evidence of X person’ – someone named and identified.  I would submit that the court should make a final decision now, and not seek more evidence”. 

How did the cross-examination influence the judgment?

The judge decided there was no need to involve any further experts in the case, and that he had enough evidence to decide that vaccination (with the full adult Pfizer dose) plus boosters in line with government guidance was in DC’s best interests.

He made this decision despite, in large part, accepting the information derived from Francis Hoar’s cross-examination of Dr H, the GP.

It seems to me that Francis Hoar’s cross-examination was “successful” to the extent that it revealed the limits of Dr H’s expertise and exposed the extent to which Dr H was essentially toeing the official government line put out by the Joint Committee on Vaccination and Immunization.  

The cross examination succeeded in this goal by using the standard methods identified above: i.e., by asking closed questions to which counsel already knew the answers, deriving information for subsequently use in a closing statement, and so on.

In his judgment, HHJ Burrows shows that he saw and accepted what Francis Hoar wanted him to understand concerning the limits of Dr H’s expertise:

Having heard Dr H respond to cross examination from Mr Hoar, it seems very clear to me that he did not feel able to engage with some of the points put to him about risk and benefits. It is obvious to me that the CCG’s evidence rests on the official-line towards the vaccine. Dr H was not before me to look behind the official guidance and advice, but simply to ensure that he applied it faithfully. When some figures which are emerging from vaccinations in certain groups (Israel and the US Armed Forces, for instance), were put to him Dr H did not attempt to question them by reference to any research carried out elsewhere. This is no criticism of him. He is a G.P. and CCG Medical Director with a task of ensuring the vaccine is effectively rolled out. (§40, Re DC [2022] EWCOP 2)

The problem (for Francis Hoar and for the parents) is that the court routinely makes decisions based on the official guidance and expects no more of a GP except that he applies it faithfully.  

This position was laid out originally by Mr Justice Hayden:

“My task is to evaluate [P’s] situation in light of authorised, peer reviewed research and public health guidelines and to set those in the context of the wider picture of [P’s] best interests“. (SD v Royal Borough of Kensington & Chelsea [2021] EWCOP 14)

In this case, HHJ Burrows also drew on a decision in the Court of Appeal (albeit obiter) as to the approach the Court should take on vaccination cases involving children: “It favours the Court being guided by Public Health England and the Green Book: see Re H (a child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 Eleanor King, LJ” (§33, Re DC  [2022] EWCOP 2).

So Dr H, who relies on public health guidelines and the Green Book, and applies official guidance “faithfully”, is in fact – as counsel for the CCG claimed from the outset – an entirely appropriate expert in a case of this kind.

A cross-examination can be technically flawless in its execution, in the sense of eliciting the information (and creating an impression of the witness) that counsel wishes subsequently to use in closing submissions.  But it can ultimately fail because those submissions are simply not compelling for the judge.

POSTSCRIPT

Mr Justice Hayden heard the parents’ appeal against this decision on 3rd May 2022 (MC & Anor v A CCG & Anor [2022] EWCOP 20). A few days before this appeal, DC contracted COVID-19 and was quite ill. In light of this development Hayden J reviewed the framework put in place for vaccination. In his judgment (§28) he comments that the original decision was “unimpeachable” and “but for the intervening Covid-19 infection, the appeal would have been dismissed.” Given the “parents’ almost palpable anxiety” about vaccination, which Hayden J considered would lead to DC becoming distressed in turn, making this a factor in DC’s best interests, Hayden J took the rare course of ordering further evidence about the nature of the vaccinations required and the effect of post viral natural protection before reaching a final conclusion. The appeal was adjourned to permit this. I don’t know the subsequent outcome.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She tweets @KitzingerCelia

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^[1] Family concerns to establish whether their loved one might have ‘natural immunity’ are common to several of the cases I’ve observed, with the implied or explicit expectation that evidence of natural immunity would obviate the need for vaccination.  The parents’  position in this case was characterised by the Official Solicitor as “one of scepticism regarding the efficacy and risk of the currently licenced COVID-19 vaccination programme adopted in this country” – although they “do not profess themselves to be anti-vaccination per se and in fact protest the opposite”.  This seems to be a recurring pattern across several COVID-related hearings I’ve observed – with family members seeking to refuse vaccination characterised by the court as “anti-vaxxers”, a label that they themselves reject (e.g. Part 3: “Is P’s sister an ‘anti-vaxxer’, in this blog post: “The politics of the pandemic in the Court of Protection”).

^[2] Another GP from the same surgery (Dr Y) had been asked by the CCG to give a written ‘second opinion’ and that document was also before the court.

^[3] What Hayden J actually said in SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14 was: ““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, my emphasis)

^[4] I’m grateful to Claire Martin who also observed this hearing and shared with me her detailed and comprehensive notes of what was said in court.  I have benefited enormously from the opportunity to compare my record of the spoken word against hers, but accept ultimate responsibility for the quoted material in this blog post. It is as accurate as I can get it, given that we are not allowed to record hearings. There are many extracts quoted in which Claire and I had identical word-for-word records of what was said. There are others where one of other of us missed a word or phrase, or recorded something with slightly different phrasing and I have had to select one or the other. For example (to show the extent of divergence where we differed): Claire’s notes read: “FH: It’s right to say that when P was last seen by neurologist and physio – you did not speak to any of them prior to BI meeting. (GP: No). FH: Nor since. (GP: No). FH: I’m going to suggest you should have done.”  My version of the same exchange goes like this: “FH: “When P was last seen by his respiratory consultant, [missed one consultant] and physiotherapy consultant, you didn’t speak to any of those before the BI meeting. (GP: No.) FH: Or subsequently. (GP: No.) FH: And I’m going to suggest that you should have done, given the complexity of this patient and the fact that the vaccine is new.”). 

^[5] I am enormously grateful to Oliver Lewis and Leonie Hirst for inviting me to participate in the Inner Temple Advocacy Weekend.

^[6] That is in my view an accurate and fair summary of the JCVI statement of 3^rd September 2021.

^[7] I’ve had a search for this evidence and can’t find it. There are only 3 research references cited in the JCVI statement of 3^rd September 2021 and I can’t see evidence in any of them relating to myocarditis in young men post-vaccination. There’s a note at the bottom of the statement saying “Some of the data considered by JCVI were unpublished analyses from the studies cited above” – but I would not know how to obtain this data and wouldn’t expect a GP to do so.  There are certainly publications post-dating the Best Interests meeting of 24^th September 2021 (e.g. “COVID-19 Vaccination–Associated Myocarditis in Adolescents” which finds post-vaccine myocarditis with “quick clinical recovery and excellent short-term outcomes” in males aged 12-20; published in November 2021). A study of the entire Israeli population found that “definite or probable cases of myocarditis among persons between the ages of 16 and 19 years within 21 days after the second vaccine dose occurred in approximately 1 of 6637 male recipients and in 1 of 99,853 female recipients” (“Myocarditis after BNT162b2 mRNA vaccine against COVID-19 in Israel”, published 2^nd December 2021).

^[8] Montgomery v Lanarkshire Health Board [2015] UKSC 11

^[9] The parents are not, of course, the decision-makers. 

^[10] Here’s the government website concerning Vaccine Damage Payment

^[11] The current version of the Information for UK Recipients of the Pfizer vaccine is available online (click here). It does not include the information that you cannot sue the manufacturer or that government compensation is limited to £120,000.

Photo by Steven Cornfield on Unsplash