Liverpool CCG made an application to the Court, seeking a declaration that it was in the best interests of the first respondent (hereafter known as X), to be provided with a vaccination to protect her against potential consequences of being infected with the COVID-19 virus.
X is female and 50 years of age. She has a diagnosis of severe epilepsy and mild learning difficulties. She is housed in a supported living complex, alongside two other residents and she receives 24-hour care and support and also 1-1 support in accessing the community.
The consultants in charge of X’s medical care believed that it would be in X’s best interests to receive the COVID-19 vaccination, in accordance with the Government guidelines as she was identified as ‘clinically vulnerable’. The CCG stated that X had no known allergies to the vaccination and that the physical risks of her receiving the vaccination were relatively minor, other than the general well know side-affects which could last up to a few days post vaccination. These side-effects were said to outweigh the risk of serious ill health or death from the virus.
The CCG proposed that X should be offered the opportunity to receive the vaccine and that I would be administered in accordance with an 8-point care plan, specifically tailored to X and which supported her body autonomy. The care plan would show that it would be X’s choice whether she accepted the vaccine or not and she would not be physically restrained in order to secure its administration and she would not be coerced into the decision.
X’s sisters and two brothers however disputed that it would be in X’s best interests to receive the vaccine. Their views are communicated through Y in these proceedings. Y was very close to X and she had been continuously involved in her welfare, care and upbringing from a very early stage. Y has supported X in receiving various medical treatments, including medicinal cannabis in order to assist X in controlling her epileptic seizures.
Upon giving evidence, it was clear that Y opposed X receiving the vaccination. She cited the unknown risks of all of the vaccines and also that there was no way of knowing what or if there would be any adverse medium or long-term side effects. Y also stated that X had in fact tested positive for COVID-19 and that she had built up a natural immunity through COVID antibodies.
HHJ Gregory had sight of various bundles of evidence and witness statements prior to making a judgement.
It was noted that Dr Z, did not regard X’s epilepsy as a specific risk factor given that COVID was fundamentally a respiratory condition, rather than a neurological one. She did agree with the general proposition that there may be other contraindications and side effects which are unknown. Dr Z also reported that she was unable to say how long the antibodies would protect X from the virus but admitted that vaccine immunity also waned over time. Dr Z ultimately supported the guidelines which stipulated that a vaccine should still be given to patient’s even if they have previously had COVID as it boots their ‘protection’.
Y gave evidence and she said that she considered it inappropriate for X to be consulted about the vaccine given her lack of capacity. She stated that she believed that ‘if X did have capacity, she would decide not to have the vaccine and defer to our (the sisters’) views.’
In the closing submissions, Counsel reminded HHJ Gregory that There is no available evidence of her (X’s) wishes and feelings on matters of this nature before her incapacity. Her indication that she wished to accept the vaccine, when asked during the relatively informal capacity assessment carried out by Dr Z in May 2021, may well have proceeded on the erroneous basis that, if not vaccinated, she may have been precluded from going on outings in the community. ‘
Counsel also reminded HHJ Gregory of the obligation in arriving at a best interests decision on X’s behalf was not confined to a consideration of medical matters and the Judgment of the vice president in SD v London Borough of Kensington and Chelsea at paragraph 33 was stated with its emphasis on the promotion and respect for X’s autonomy, warning of the risk of X’s voice being drowned by others – however unimpeachable their motivations or however eloquently their own objections were advanced.
Findings and Outcome
It was held that ‘on balance, it is in X’s best interests to be offered the vaccine in accordance with the 8-point care plan, appropriately modified to remove any suggestion and that she may be offered a ‘treat’ in consideration for accepting the vaccination.’
Hayden J in the SD case said that ‘this court’s function is not to arbitrate medical controversy, or provide a forum for ventilating speculative theories, but rather to evaluate X’s situation in the light of public health guidelines and peer reviewed research.’
HHJ Gregory was satisfied that the care plan ‘does indeed have, as Mr. Hughes puts it, X ‘at its front and centre.’ It represents a genuine attempt to determine X’s wishes and feelings and preserve for her whatever measure of autonomy may be possible in the circumstances.’
Liverpool CCG’s application was therefore granted and the HHJ Gregory directed that ‘X be offered a vaccination in accordance with the published care plan.’
The full judgement can be read here
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