CCGs, Covid vaccinations and best interests disputes

The Court of Protection has confirmed again that clinical commissioning groups (CCGs) must act with urgency to resolve best interests disputes on Covid-19 vaccinations, write Leah Selkirk and Ellie Maudsley.

The case of A Clinical Commissioning Group v DC & Ors [2022] EWCOP 2 (31 January 2022) involved a clinically vulnerable individual, DC, and a dispute over whether he should have both doses of the Covid-19 vaccination and any relevant booster vaccination in accordance with the available NHS guidance for his age group. The case also highlighted the importance of bringing matters of this kind urgently before the Court of Protection where there is a clear dispute between clinicians and family. 

The CCG consider it is in DC’s best interests to have the vaccine, DC’s parents, MC and AC, disagreed. An application was therefore made to the Court of Protection to decide whether it was in DC’s best interests to:

1. Have the vaccine (full two doses along with any recommended booster) in accordance with a vaccination plan; or
2. Not have the vaccine.

The CCG’s position

The CCG’s position is based on the available NHS guidance, which relies upon the JCVI and Green Book at Chapter 14a. DC is at high risk of serious consequences if he were to contract Covid-19 because of his complex condition, in particular his respiratory condition, the fact he has a profound learning disability and that he resides in a care home where everyone else is vaccinated.  

According to NHS guidance, DC’s age and the risk to him were he to contract Covid-19, mean that he should have both doses of the vaccine, along with any recommended booster vaccine. Dr H, DC’s GP, considered the guidance and concluded that the adverse risks of the vaccine are greatly outweighed by the protection it offers towards the Covid-19 virus that could be catastrophic for DC. 

One main consideration throughout was DC’s weight; though he is 20 years old, he weighs 30kg which is similar to that of a small child. NHS guidance currently does not focus on a person’s weight as a deciding factor in relation to the vaccinations, and instead is based on age.

Parents’ position

The evidence of DC’s parents, MC and AC, against DC having the vaccine was as follows:

• The vaccines have not gone through the usual tests and regulatory scrutiny as they would have in normal times. MC deemed them to be “experimental”.
• MC is not satisfied the vaccine DC is being offered is as safe and efficacious as everyone is led to believe.
• Specific concerns highlighted were in relation to myopathy other respiratory, vascular and neurological issues and blood clots.
• Concern over DC’s weight 
• AC’s main opposition is that DC is a delicate young man who in the past has recovered rapidly from serious health problems . AC believes administering this vaccine might send him into ill health from which he will not recover.
• Neither MC, AC nor their daughter are vaccinated against Covid-19.

DC’s parents urged the judge to refuse the order to vaccinate DC until there was evidence that DC had gained natural immunity.

Decision

After hearing all of the evidence His Honour Judge Burrows was persuaded that without the vaccine DC is at risk of Covid-19 causing him much greater harm than if he has the vaccine. The judge was satisfied on the basis of the CCG’s evidence that the risks to DC of having the vaccination do not outweigh the advantages.

His Honour Judge Burrows declared it was in DC’s best interests to receive the vaccine and any boosters.

Two important issues raised by the judge is that a significant number of cases in relation to Covid-19 vaccinations are delayed in being brought before the court. His Honour Judge Burrows reinforced previous comments made by His Honour Judge Hayden regarding delay in SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14 at paragraph 26. 

His Honour Judge Burrows confirmed that once it becomes clear that there is dispute between clinicians and the family on an urgent matter over important treatment of a mentally incapacitous adult, such as Covid-19 vaccinations, an application to the Court of Protection should be brought and determined with urgency. 

He also reaffirmed that “…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 [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".

An application was made by DC’s parents to the judge for permission to appeal; this was refused.

Comment

While there are not always clear lines of responsibility, CCGs need to be acutely aware that the court has determined that a CCG will almost always be responsible for the rollout of vaccinations for vulnerable adults within their catchment, which will invariably mean working closely with their registrant GP practices.

Leah Selkirk is a Senior Associate and Ellie Maudsley is a Trainee Solicitor at Hill Dickinson.