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Court of Protection judge calls for further evidence in Covid-19 vaccination case

A Court of Protection judge has taken what he called the “rare step” of seeking more evidence before making a ruling over whether a man with severe disabilities should be given the Covid-19 vaccination.

In MC & Anor v A CCG & Anor [2022] EWCOP 20 Hayden J, the Court’s Vice-President, said that before ruling in the case concerning 21-year-old DC - who has a profound learning disability and respiratory problems -he wanted to know whether it was necessary for DC to have both an injection and a booster as he had been infected with Covid-19 since the dispute over vaccination began.

The judge also wanted further evidence on whether DC would require any medication or vaccination presently targeted to people in DC’s situation and whether his later natural infection by the Omicron variant was likely to boost immunity.

He also strongly criticised the unnamed clinical commissioning group in the case over the delay in bringing it to his court or that of HHJ Burrows, who heard the original case.

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DC became eligible for vaccination in February 2021 but the case reached HHJ Burrows only in January this year.

“No sensible or coherent explanation has been offered, either to me or to Judge Burrows, to explain the extraordinary delay in bringing the matter to court,” Hayden J said.

The CCG had said that DC should be vaccinated, but his parents opposed this both for religious reasons and from their own understanding of medical issues.

DC has a rare congenital brain malformation and is described as non-verbal. His  respiratory problems require him to us a suction machine and, where necessary, a nebuliser and oxygen machine to support his breathing.

The judge noted DC had “by some distance, outstripped his life expectancy. All the professionals who have been involved in his care consider that this is not merely in consequence of the high quality of medical support he has received, but primarily due to the practical and attentive commitment of his parents.”

HHJ Burrows was asked to resolve was whether it is in DC's best interest to be vaccinated against Covid-19 and decided that he should be.

DC’s parents appealed on six grounds including that HHJ Burrows erred in not either having adjourned the matter to allow for DC to be tested for his potential natural immunity to Covid-19 or concluded that, without such a test, it was premature to make a decision to vaccinate.

They further argued that he erred by taking insufficient account of the lack of evidence about the effect of the vaccine on adults with the weight of a small child, took his decisions in the absence of expert evidence and did not consider the serious side-effects from the vaccines.

DC though contracted Covid-19 in early April 2022, but his parents did not inform the court or their lawyers of this significant change of circumstance, Hayden J said.

The judge said: “I should note that the parents have minimised these symptoms of infection…I have no doubt that they did this to justify their longstanding belief that DC would not, were he to be infected, be seriously impacted.

“They love their son deeply and unconditionally but, they could not have known what his response to infection might be. Their minimisation of his symptoms is a facet of their own belief structure. DC's health was never compromised to a degree that threatened his life, nor did he require hospitalisation.

“However, his experience of Covid infection must not be minimised to support a particular perspective on the vaccination. This not only risks suppressing DC's voice, it goes further, it misrepresents him. It must also be remembered that DC does not have the capacity to communicate any symptoms. Happily, he has made a full recovery.”

The judge said an opinion from an epidemiologist could be helpful and he would adjourn the appeal “for a very short period” while the questions he identified were investigated.

Mark Smulian

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