| SPOTLIGHT |
A Court of Protection judge has issued a ringing refutation of a “regressive” assertion, writes Alex Ruck Keene.
Introduction
Hayden J had the chance in Re RN [2022] EWCOP 53 to put comprehensively to bed a suggestion that it is striking (to put it neutrally) that any lawyer could have considered advancing in 2022. The case concerned an appeal from a decision that it was in the best interests of a 22 year old man to have the COVID-19 vaccine (a particular feature of his condition being the cardiological risk he was at from COVID).
His mother very strongly disagreed with the decision, and sought to appeal it. The sole formal ground of appeal was that, given his cognitive impairments, his mother retained parental responsibility for him, such that her decision could only be overridden “in extreme and limited circumstances.” In support of this ground, the proposition was advanced that, on the basis of the observation of Lord Scarman in Gillick v West Norfolk and Wisbech Health Authority [1986] AC 112 that parental rights to decide upon medical treatment terminate (in respect of a child below 16) when the child achieves sufficient understanding and intelligence to enable them to fully understand what is proposed then:
if a child lacks the capacity to understand, the parental right for the protection of the child continues.
RN lacks capacity; and S’’s parental rights continue in full, especially in the home setting. There is no ‘magic’ about an age: 16, 18 or, as in this case, 22 years. TN has parental responsibility for RN as he lacks Gillick competence.
Hayden J dispatched this argument crisply at paragraph 22:
There is no logical nexus between the propositions that Mr Diamond has advanced and the submission he makes above. An adult who lacks capacity is not and should never be treated as a child. That paternalistic approach has long ago been consigned to history and recognised for what it is, a subversion of adult autonomy.
TN’s Counsel sought to develop a further proposition that so-called common law fundamental rights were potentially more extensive than ECHR rights, and that the MCA (for reasons that are not entirely clear from the passage of their argument cited) did not provide sufficient authority to override TN’s common law rights as a parent, and that:
The concept of a modern, liberal democratic State rejects the notion of a universal and state-imposed set of values but allows each individual (and, by implication, each family) to chose their own notion of the “good”: the principle is live and let live. Liberalism’s uniqueness is that individuals are free to choose their own “good”.
Hayden J noted (at paragraph 25) that he was:
[…] bound to say that this elegantly expressed sentence strikes me as supporting the exact opposite of the case Mr Diamond is seeking to advance. It is RN’s freedom that is to be protected here and not that of his mother. As is clear from this judgment, RN has a quality of life which is dignified and meaningful. I emphasise again, that he is capable of expressing both his enjoyment and his displeasure, his acquiescence and his resistance. The care plan reflects these fundamental facets of his autonomy and dignity.
He continued, at paragraph 27 that:
Children are not chattels of parents. Our domestic law emphasises responsibilities rather than rights. In most situations, a parent will have ultimate responsibility for taking decisions concerning their children’s health, education, and welfare. It is obviously right that this should be the case, but it is not ubiquitously true. Parents do not have absolute rights in respect of their children. Occasionally, for example, in the sphere of serious medical treatment, parents are sometimes ambushed by their own grief and distress which ill-equips them to identify where the best interests of their children lie. Thus, I reject Mr Diamond’s primary proposition and, inevitably, therefore, the analogy he seeks to make with adults who lack capacity. In any event, however, incapacitious adults are entitled to the same choices and opportunities as the rest of the adult population. These rights are more extensive than those available to children. They include rights to forge personal and sexual relationships, to marry etc. The Mental Capacity Act 2005 imposes an obligation actively to promote P’s decision taking however limited the sphere might be in which it can be exercised. It also requires assessment of wishes and feelings, even where P lacks the ability to understand, weigh or evaluate the decision in focus. Thus, the law extends the freedoms of adulthood to all adults, which includes the incapacitious. Any other approach would be discriminatory.
In circumstances where there was “strong evidence” that the greater risk emerged if RN was not vaccinated, and it appeared that (whilst he could not decide for himself whether to have it) he was able to decide whether to cooperate or reject it (in circumstances where his rejection would not be overridden by force), Hayden J emphasised that he had an important element of autonomy which had to be respected. Returning to the “values-based” argument advanced, Hayden J made clear at paragraph 28 that he considered that:
Mr Diamond’s argument rather than advancing “modern liberal-democratic values” is regressive and fails to afford appropriate respect to people with disabilities who lack capacity in specific spheres of decision making.
In the circumstances, and whilst Hayden J (of his own motion) sought to probe the extent to which RN’s wishes and feelings (which, as he noted, were not to be conflated) had been examined, as opposed to being “drowned out” by TN’s own views, he had little hesitation in refusing permission to appeal. As he made clear, whilst those views were sincere, they “could not be reconciled either with the national medical guidance nor the specific evidence relating to the cardiology in RN’s case” (paragraph 32).
Comment
The observations in relation to vaccination are useful as a reminder that: (1) decision-making must be focused on the person themselves, taking into account both their “medical” best interests, and, crucially, what is known of their wishes, feelings, beliefs and values; and (2) that the approach set down in SD v Royal Borough of Kensington & Chelsea [2021] EWCOP 14 remains valid in respect of arguments around the vaccine’s safety and efficiency, namely that:
…it is not the function of the Court of Protection to arbitrate medical controversy or to provide a forum for ventilating speculative theories. [the court’s] 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.
In relation to the arguments advanced in relation to parental responsibility, I have very deliberately couched in terms of having been developed by TN’s lawyers. Before HHJ Burrows, Counsel instructed by TN advanced arguments largely based on the safety of the vaccine (using arguments that have been deployed and rebuffed in multiple cases). The line of attack advanced by her new lawyers was, to say the least, ambitious, and problematic in its implications. Adults with impaired decision-making capacity are simply not big children, and it would be deeply regressive of the law to treat them as such.
It is worth reflecting, however, that despite the fact that parental responsibility entirely ceases as a matter of law at age 18, (most) parents do not stop feeling responsible for their child on their 18th birthday, especially in situations where their child’s impairments mean that they will continue to need intensive support thereafter. If the law is clear, it is the responsibility of professionals charged with meeting those needs (1) to explain the law to parents; and (2) to seek appropriately and sensitively to take into account the views of parents as part of the decision-making process to reach a conclusion as to what is in the best interests of the individual. In relation to (1), some may find this “myth-busting” guide prepared by the National Mental Capacity Forum to be of use.
Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law & Policy blog.
