Alex Ruck Keene analyses a Court of Protection ruling on whether a 31-year-old man with a learning disability should be vaccinated against Covid-19.
Re CR.  EWCOP 19, decided by HHJ Butler, differed to the previous two cases on vaccination (both decided by Hayden J) because it concerned a much younger person, who never – it appears – had the capacity to make their own decisions about vaccination. The person in question, CR, was 31; he had been diagnosed with a lifelong severe learning disability, autism and epilepsy. He was classed as ‘clinically vulnerable’ as opposed to ‘clinically extremely vulnerable’ as a result of his epilepsy and severe learning difficulties. He was also overweight, weighing an estimated 22 stone. He fell within the priority group for a vaccination. He was, at that point, in a care home, although it appears that this may only have been a temporary placement.
His father opposed vaccination on a number of bases. The CCG brought an application for a decision that it was in CR’s best interests to have the vaccination (supported by his RPR, acting as his litigation friend). In response to questions from HHJ Butler, CR’s father:
1.5. […] stated that he had no objections to the vaccination in principle, but that this was not the right time for his son. This was based (mainly) on the lack of data as to the consequences of such a vaccine for those who fell into the same category as his son. He (and his family) did not think that there had been enough testing for those with learning disabilities (and as a result of which the relevant evidence was absent). He was also concerned that the contents of the vaccine itself might interact with the other medication that his son is receiving and in particular those that were used to control his epilepsy, and treat his ADHD. He agreed that (in part) his concerns were linked to the (now) discredited theories proposed by Dr Andrew Wakefield as regards the link between autism and the MMR vaccine, and which he still believed were accurate.
1.6. Thus, it appears that the autism which CR has, is attributed by SR to an MMR vaccination that he received at birth. He has had no vaccinations at all since that time.
CR could communicate via a limited range of Makaton and will respond to physical cues. It was said that he could be resistant to intervention, including medical intervention, and there was a reference to him having a phobia of hospitals and health interventions. However, in January 2021 he did permit blood samples to be taken from him, and with staff at the care home to provide him with reassurance. The court was informed that at that time CR was sedated (as a result of medication for one of his conditions) but that physical intervention was not needed and nor did CR pull away.
The CCG made clear that it would not administer the vaccination if any form of physical intervention was required.
As there was no suggestion that CR had capacity to make the decision for himself, HHJ Butler identified that the question was purely one of what was in CR’s best interests, continuing:
3.3. In this instance, it is not possible to determine what CR’s views or wishes might be. He is still a young man, but his condition has endured throughout his 31 years. His ability to communicate is compromised, and he is not able to understand the consequences of not having a vaccination, or having a vaccination.
3.4. As I have determined that it is not possible to reasonably ascertain his wishes, it seems to me that the position is akin to that proposed by the Law Commission and also referred to by Baroness Hale in Aintree University Hospitals NHS Trust v James  UKSC 67 at  ‘but the best interests test should also contain ‘a strong element of substituted judgment (para 3.25) taking into account both the past and present wishes and feelings of patient as an individual and also the factors which he would consider if able to do so (para 3.28)’
3.5. What factors would he be able to consider if he were able to do so? On the basis of the actual evidence in existence it would be as follows (and as summarised in the helpful skeleton argument provided on behalf of the Applicant and First Respondent):
(a) That the vaccination has MHRA approval in the UK;
(b) There are no contra-indications for the use of this vaccine which apply to CR;
(c) Astra Zeneca vaccines significantly reduce the risk of sustaining serious illness requiring hospitalisation (an 80% reduction in those over the age of 80) (cf The Lancet 3.2.21)
(d) a 75% reduction of asymptomatic infection (University of Cambridge 24th February 2021);
(e) that he is living in a care home (albeit covid 19 free at present) and where there have been more than 25% of deaths caused by Covid 19;
(f) he has a relevant underlying health condition and which places him in a vulnerable group;
(g) he is unable to comply with social distancing and hygiene measures;
(h) the UK has one of the highest per capita death rates in the world;
(i) he does not appear to have any anxiety about a medical intervention and which has involved the use of something sharp as recently as January 2021 (albeit that this was whilst he was sedated with a medication that is now not being administered as a part of his treatment);
(j) the documented common side effects are mild;
(k) if he did contract Covid 19 then the consequences for his health due to the health conditions that he does have might be serious illness or death;
(l) he is overweight.
It was accepted that CR fell outside:
3.6 […] what might be termed the more conventional cohort of individuals who live in care homes. He is, for example young and other than his epilepsy has no conditions that cause him to be frail. There is no Covid 19 in the care home at present, but as visiting becomes more relaxed then unvaccinated visitors from outside the care home will increase the risk of such contagion. I was also told at the hearing that the vaccination programme for other residents at the care home has started.
HHJ Butler found that, although CR was not elderly, there was still a risk, and that:
3.8. […] the consequences of infection are also still high, and engage his rights pursuant to Article 2 of the ECHR (‘Everyone’s right to life shall be protected by law’). CR, of course, has the same rights as everybody else who has capacity. So, notwithstanding that CR has the advantage of youth on his side, in my judgment CR still faces a real and significant risk to his safety if the vaccination is not administered. For the avoidance of doubt this applies to both doses. I am also reminded by Mr Wenban-Smith that ‘There is a very strong presumption in favour of taking all steps to prolong life, and save in exceptional circumstances …. The best interests of the patient will normally require such steps to be taken. In the case of doubt, that doubt has to be resolved in favour of the preservation of life’ (Munby J R (Burke) v GMC  EWHC 1879 (Admin) and which was approved in the Court of Appeal).
HHJ Butler found that the views of CR’s father (which were apparently shared by his mother and twin brother) were genuinely held, were not intrinsically illogical, and certainly not deliberately obstructive:
3.10. However, the reasons for opposing the administration of the vaccine have no clinical evidence base. In particular the objections (and this is subjectively understandable) are based on objection to this vaccination for his son as a result of what SR believes were the consequences of the MMR injection and the autism of his son. Objectively, however, this is based upon the discredited theories of Dr Andrew Wakefield (advanced in 1998) and which were (a) found to have no basis in science; (b) were formally retracted by Dr Wakefield in 2020 and (c) resulted in Dr Wakefield being struck off the Medical Register. (emphasis in the original)
HHJ Butler considered that CR would have been likely to have considered the factors which pointed towards the “evidence based advantages of having a vaccination” (paragraph 4.4), and that the “relevant circumstances” for purposes of s.4(11) must include “the specific vulnerability of this man (notwithstanding his relatively young age), together with the overwhelming objective evidence of the magnetic advantage of a vaccination” (paragraph 4.7).
HHJ Butler therefore found that it was in CR’s best interests to have the vaccine, but with the specific caveat that he was not endorsing physical intervention to secure it.
Of note in this case is the fact that HHJ Butler delved more deeply into the scientific evidence than had Hayden J in either Re E or SD, in large part because there was not the same evidence as to what CR might have done based upon his own actions in order to guide the decision. Hayden J in Re E had made clear that it was “not the function of the Court of Protection to arbitrate medical controversy or to provide a forum for ventilating speculative theories” (paragraph 31), but in this case given that such a clear plank of CR’s father’s objection were the claims of Andrew Wakefield, HHJ Butler was on very sound ground finding that, even if they were subjectively understandable, they were simply ill-founded.
One other point of note is that amongst the factors that HHJ Butler considered CR would have taken into account was the report from the University of Cambridge that the vaccine gave rise to a 75% reduction of asymptomatic infection (University of Cambridge 24th February 2021 (nb, this report actually relates to the Pfizer, not Astra Zeneca vaccine). Questions of the potential of securing against risk of harm to others are likely increasingly to feature in considerations of best interests as matters go forward, which will, as discussed in our guidance note, make matters increasingly challenging to ‘house’ within ss.5-6 MCA 2005 in the event that any suggestion arises of the use of restraint.
Finally, on a procedural point, this case makes clear that decisions around COVID-19 vaccination are not being viewed by the Court of Protection automatically as serious medical treatment decisions requiring allocation to a Tier 3 (High Court) judge.