BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

Jersey Unreported Judgments


You are here: BAILII >> Databases >> Jersey Unreported Judgments >> In the matter of B (Capacityl) [2023] JRC 008 (17 January 2023)
URL: http://www.bailii.org/je/cases/UR/2023/2023_008.html
Cite as: [2023] JRC 8, [2023] JRC 008

[New search] [Context] [Printable version] [Help]


Capacity - health and welfare decision.

[2023]JRC008

Royal Court

(Probate and Protection)

17 January 2023

Before     :

Sir William Bailhache, Commissioner, and Jurats Christensen MBE and Hughes

 

Between

The Minister for Health and Community Services

Applicant

And

B

First Respondent

And

C (the Father) and D (the Mother)

Second Respondents

IN THE MATTER OF B (CAPACITY)

AND IN THE MATTER OF ARTICLE 27 OF THE CAPACITY AND SELF-DETERMINATION (JERSEY) LAW 2016.

Advocate H. J. Heath for the Applicant.

Advocate R. C. L. Morley-Kirk for the First Respondent.

Advocate I. C. Jones for the Second Respondent

judgment

in private

the commissioner:

Introduction

1.        This case concerns an application brought by the Minister under Article 27(1)(a) of the Capacity and Self-Determination (Jersey) Law 2016 (the "2016 Law") for a specific health and welfare decision, namely that authorisation should be given to the Minister to procure that the First Respondent has vaccinations and boosters in respect of the Covid virus and against influenza (the "proposed treatment").  The Second Respondents are the parents of the First Respondent.  In this judgment they are described individually as the Father and the Mother respectively, and together as the Parents. 

2.        There have been previous proceedings in this Court and in the Court of Appeal in connection with the arrangements for the First Respondent.  On 14th August 2019, this Court was engaged in making a decision in relation to medical treatment of the First Respondent and it agreed with the Minister's proposal that the First Respondent should have a percutaneous endoscopic gastrostomy ("PEG") feeding tube fitted.  The Parents did not agree to that procedure being done, and after hearing evidence, the Court made the order that the insertion of a PEG was in the best interests of the First Respondent.  On 3rd August 2020, the Court was engaged with the question of a best interests decision as to where the First Respondent should live.  In both those cases, as in the case before us, Ms Patricia Winchester of My Voice has acted as the independent capacity advocate for the First Respondent. 

3.        Much of the individual history in relation to the First Respondent is set out in those two judgments which are recorded as In the matter of B (Medical) [2019] JRC 158 and In the matter of B (Medical) [2020] JRC 153 respectively.  We have had regard to those passages, where relevant, and we do not seek to repeat them all now although for convenience we can perhaps adopt some of the summary of the factual position from our earlier judgments, in particular the judgment in 2019:

"1.      The First Respondent...reached his developmental milestones until the age of two when he developed mental regression.  He is non-verbal and has a spastic tetraparesis.  He lost his language skills at six years old and used sign language until he reached the age of twelve.  He has suffered from seizures since the age of ten and while there was some delay in diagnosis, the recent clinical opinion from the specialist centre in the UK has concluded that his seizures are epileptic.  In 2013 he was diagnosed at Addenbrookes Hospital with an undefined metabolic disorder.  In 2017 he was admitted to Chalfont Hospital for further investigation where an abnormal EEG confirmed significant cerebral dysfunction.  An MRI also showed disproportionate volume loss affecting the cerebellum.

2.        In November 2018, the First Respondent was admitted to the Jersey General Hospital suffering from possible urinary retention, dysphagia, constipation and increased seizure activity.  He was treated with a continuous IV dextrose solution and a low close protein nasogastric ("NG") feed. 

3.        On 2 January 2019 the nasogastric tube came out and a decision was made in consultation with the Second Respondents to have a trial of oral feeding to assess if he would be able to meet his nutritional requirements with a view to discharge home.  In early February 2019 the speech and language therapist expressed the opinion that his nutritional needs were not being met through oral feeding and the NG tube was reinserted.

4.        The First Respondent was transferred to the National Hospital for Neurology and Neurosurgery at University College London on 4th March for further assessment.  During his attendance there, his seizure activity was subject to investigation and found to be very frequent.  It was decided as a result to increase his anti-epileptic medication and over the following weeks his seizure activity decreased.  However, during admission to that hospital, he developed sepsis requiring a transfer to ITU."

4.        The decision in August 2020 was that the First Respondent should be housed in a care establishment subject to regulation by the Jersey Care Commission in accordance with the relevant legislation.  The care establishment currently has four residents apart from the First Respondent, all of whom unfortunately suffer from considerable disabilities.  We are told that each of them has been vaccinated against Covid and against influenza.  The First Respondent has not been so vaccinated, because his parents have objected to that action being taken.  The Father has been appointed by the Court as both health and welfare and property and affairs delegate for the First Respondent with all the powers of a delegate under the 2016 Law except that:

(a) he may not, as delegate, without having the consent of the independent capacity advocate:

(i)    make a decision as to where the First Respondent should live; and

(ii)   refuse consent to the carrying out or continuation of medical treatment on behalf of the First Respondent (save for the refusal of life sustaining treatment in respect of which the delegate has no power to make a decision even with the consent of the ICA).

(b) it is further recorded that the Father may not act as delegate pursuant to Article 27(2) to:

(i)    prohibit a named person from having contact with the First Respondent (including members of staff at [the care establishment] as well as professionals and medical staff that the manager of [the care establishment] decides that it is in the First Respondent's best interests to have contact with);

(ii)   direct a person providing healthcare for the First Respondent to allow a different person to take over that responsibility; and

(iii)   refuse consent to the continuation of life sustaining treatment.

5.        The absence of consent of the Father as delegate to the proposed treatment means therefore that it is necessary for the Minister to apply to Court for approval for that treatment to be carried out, if it is to happen. 

The hearing

6.        That application was made by Ms Caroline Gardner on behalf of the Minister on 27th June 2022.  Written submissions were filed, and the Court has received an amount of documentary evidence.  The hearing of the application took place on 9th and 10th January 2023, when evidence was taken from the Parents; from Ms Gardner; from Mrs Winchester, the independent capacity advocate; and from Doctors Adrian Noon and Ivan Muscat, and Professor Peter Bradley.  After hearing that evidence and submissions, the Court reserved judgment which we now deliver.  We record our thanks to counsel for their careful analysis of the issues which arise, which we have found helpful.

The law

7.        We remind ourselves that the Court must have regard to the core principles set out in Articles 3 to 6 of the Law, and we have considered the application in the light of that obligation.

8.        It is unclear if any formal order has been made to date giving the Minister leave to bring an application under Article 25 of the 2016 Law.  To date, it seems to have been assumed that the Minister was able to do so.  No one has contended that the Minister should not have brought this application, although it is resisted by the Parents, and, for the avoidance of doubt, we give permission pursuant to Article 25(2) of the 2016 Law for the application to be made by the Minister.  That permission is given because the Minister has overall responsibility for the First Respondent's housing and day-to-day care and is therefore in a good position to assess questions of potential benefit which might need the sanction of the Court.

9.        We have reminded ourselves that the 2016 Law follows closely the provisions of the Mental Capacity Act 2005, and accordingly that decisions of the English Courts under that Act may have particular relevance to us in Jersey.  We have reminded ourselves that the decision of the Supreme Court in Aintree Hospitals NHS Foundation Trust v James [2014] AC 591 is particularly helpful, as indeed we described in our judgment [2019] JRC 158 in relation to the PEG decision.

10.      We have noted what was said at paragraph 17 of the 2020 judgment where, having referred to Briggs v Briggs [2016] EWCOP 53, the Court said this:

"The views of a patient's family (particularly family members who have cared for him and hopefully will care for him, and who are close to the individual and know him best) are also extremely important to the best interest decision making process.  They can play a crucial role in assisting the Court to understand the individual and what his past wishes and feelings were, and what his beliefs and values would be if he now had capacity; but their views are also relevant as persons to be consulted in their own right - they are people who are 'interested' in P's welfare."

11.      We have also had regard to what this Court said at paragraphs 50 - 52 of its judgment on 3 August 2020:

"50.    ...the best interests test focuses on the patient as an individual rather than on the conduct of the professionals treating him, and it takes into account all the circumstances, both medical and non-medical.  This involves an element of substituted judgement, where the Court is considering what it would do objectively on behalf of the patient, but this is not conclusive - the Court should take into account the past and present wishes and feelings of the patient as an individual and any factors which it is thought he might consider if he were able to do so.  That is specifically required because of the reference both in the 2005 Act and the 2016 Law to the beliefs and values which would be likely to influence his decision if he had capacity - and naturally that requires the Court to consult with carers and family interested in the patient's welfare as to what would be in his best interests and what his own views would have been.  The best interests test goes further than a substituted judgement test because one is required to accept that the preferences of the person concerned are an important component in deciding where the best interests lie.  Overall therefore the test is not an objective assessment, albeit it contains elements of objectivity, but the Court is required to take a step back and look at the welfare of the patient in the widest sense taking into account not just medical factors but social and psychological factors, putting itself in the place of the individual patient and asking what his attitude to the question is or would be likely to be.

51.      As we said in our earlier decision, the views of the family members, particularly those who have cared for him, are extremely important to the best interests decision making process.  They play a crucial role in assisting the Court to understand the individual and what his past wishes and feelings were and what his beliefs and values would be if he now had capacity.

52.      We also accept the proposition set out in the English authorities to the effect that a best interests decision must require the decision taken is not a foolish one - the statute requires the decision to be a best interests decision and it follows that it is not open to the Court, assuming on the evidence that it is satisfied that the patient if he had capacity would have taken a bad decision, to take that bad decision in his best interests - because it would not be a best interests decision."

12.      We have been provided with a number of decisions under the 2005 Act with relevance to vaccinations.  We will refer briefly to the decisions later, but we emphasise that we have not taken them to be authoritative in this sense - every best interests decision under the 2016 Law is a fact specific decision, to be taken by having regard to all the evidence and relevant circumstances surrounding the patient in question.  These have to be considered afresh because it is self-evidently not necessarily in the best interests of P that a different Court found, in similar circumstances, that it was in the best interests of N that similar action be taken.  Unless there is complete identity of factual circumstances in the two cases - which almost inevitably seems will never be the case - one cannot possibly take the first decision as inevitably pointing to the same result in the second decision. 

Discussion

13.      In our judgment, bearing in mind that we have to make a decision in the best interests of the First Respondent in accordance with the 2016 Law, the right approach is to recognise that, in the first instance, it is a decision which calls for a balancing of the advantages of vaccination against the potential risks of not being vaccinated.  There is inevitably an objective medical analysis which is engaged in that exercise albeit that the objective medical exercise is not the final test, for all the reasons set out above.  The counter side is the objection of the Parents who consider even if the First Respondent did get Covid or influenza, the risk of death as a 32 year old who had Covid only last summer is very low, whereas they do perceive there to be a serious risk associated with the proposed treatment. 

14.      We will turn to the evidence shortly, but we note that Advocate Jones confirmed at an early stage on behalf of the Parents that there was no medical evidence which he was instructed to deploy.  Accordingly, the Court would have to consider such medical evidence as there was, as presented on behalf of the Minister. 

15.      We deal first with the question as to whether the First Respondent has capacity to make this decision for himself.  The oral evidence on that point was limited to that of Mrs Winchester who said that he clearly was not able to take that decision or communicate it.  We also had the written evidence of Ms Caroline Gardner, a registered nurse in learning disability, with other professional qualifications in addition; Ms Gardner is the residential team leader and line manager for nursing and care staff at the care establishment.  In her written application, Ms Gardner indicates that she had made an assessment of the First Respondent's ability to make the decision in question on his own behalf, but given that his diagnosis of a degenerative neurological disorder, which is a lifelong chronic condition resulting in a severe learning disability and severe cognitive impairment, it was highly unlikely that the First Respondent would ever regain the capacity to make an informed decision relating to the Covid or influenza vaccinations in the future.  The evidence before us was that the First Respondent has no vocabulary and a limited understanding of terms and meanings, and is therefore not able to understand information relevant to the decision; nor could he retain such information as he was able to receive; nor is he able to use or weigh it appropriately, nor communicate his decision by any means. 

16.      We are satisfied that the First Respondent has no capacity to make the decision on the proposed treatment for himself.

The medical evidence

17.      The Court heard from Dr Ivan Muscat, a consultant microbiologist who is the Deputy Medical Officer of Health.  He acts as one of the island's liaison clinicians with the Joint Committee for Vaccination and Immunisation, which advises United Kingdom health departments on immunisation.  He told us that he attends, as an observer, meetings of the Joint Committee where those are held in public, which he finds helpful.  The Joint Committee produces a book relevant to vaccination and immunisation which is known as the Green Book.  It is based upon research deriving from a huge amount of material both in the United Kingdom and abroad and was described by Dr Muscat as the 'bible' of vaccinations, primarily designed for healthcare professionals, but also available to the public.  It is a work which he told us is respected internationally and indeed we have noted from several of the English cases which were referred to us that the Courts there had regard to the Green Book in reaching their conclusions. 

18.      We noted from chapter 14a of the Green Book published on 4th September 2022 that, suffering as he does with chronic neurological disease, the First Respondent falls within a clinical risk group eligible for Covid 19 immunisation.  The Green Book qualifies the list of risk groups by making it clear that the prescriber should apply clinical judgment to take into account the risk of Covid 19 exacerbating any underlying disease that a patient might have, as well as the risk of serious illness from Covid 19 itself. 

19.      Table 2 of the Green Book describes phase 1 priority groups for primary vaccinations as advised by the Joint Committee.  Dr Muscat informed us that priority groups 4, 5 and 6 had been amalgamated, and thus this priority group included not only all those aged over 65 but also any individuals between the ages of 16 and 69 in a high risk group, and any adults aged between 16 and 65 in an at risk group.  The First Respondent therefore falls within the risk group 4 - 6 and, in short hand, he has the same exposure to risk as someone who is about 65.  That placed his mortality rate if infected with Covid at between 0.5 and 3.1%.

20.      We were shown a further table from the Green Book which placed the risk of death from influenza for those suffering from chronic neurological disease, at 14.7 per 100,000 of the population, and that figure, on the age adjusted relative risk was a factor of 40.4 above that for other people not in a risk group.

21.      Dr Muscat agreed that, if a person caught and survived Covid, the presence of antibodies would provide some protection, and as the First Respondent had caught Covid during 2022, he would have the benefit of such antibodies.  In Dr Muscat's view, the natural immunity from those antibodies plus the vaccines provided a hybrid immunity or protection which is the strongest form available and was absolutely in the First Respondent's best interests.  In particular this was true because the vaccine was more likely to cover varying mutations of the virus in the future, particularly with the booster programme.  

22.      We recognise, as did Dr Muscat, that the presence of the vaccine does not prevent infection.  However, he considered that the vaccine and the natural immunity from previous infection would provide some protection - in other words the person catching Covid would suffer less severely - and there might be a lower risk of the infection being transmitted into the community.  Boosters were needed because the protection available from the vaccine and / or the previous infection waned over a period of time, particularly with people with immune-suppression difficulties or other vulnerable groups such as the First Respondent.

23.      On cross-examination by Advocate Morley-Kirk, Dr Muscat said that the decision as to whether to give the Covid and influenza vaccines at the same time might depend on the extent to which either virus was present in the community, and one might give them separately and a month apart.

24.      On cross-examination by Advocate Jones, he confirmed that no one could rule out the possibility of side effects from receiving a vaccination.  As he put it, every medical action involves a risk / benefit ratio.  However, he said that the risk of side effects from vaccination were very much lower than the risks of injury from Covid and influenza. 

25.      It was put to him that no T-cell immunity investigations had been undertaken on the First Respondent, which he agreed; but he added that this would not make a difference to the recommendations which were made because it is known that Covid can be contracted whatever the T-cell results might be.  His starting position was that unless there was a very clear contra-indication to vaccination, everyone should be vaccinated.  He provided the statistic that up until February 2022, it was thought that vaccination had prevented 18 million cases and approximately 60,000 deaths in the United Kingdom, and in Jersey that would pro-rate to the prevention of 100 deaths.

26.      When pressed on how many times he had recommended that a person not be vaccinated against Covid, he said he could only recall one. 

27.      Dr Muscat also gave evidence that mortality is just one marker of the damage brought about by Covid or influenza infections - the result of the infection was often increased frailty, and a deterioration in the patient's general state of health, particularly so with any lengthy stay in hospital if that were involved.  In the present case, the First Respondent had been in hospital in the summer of 2022 for some thirty-four days - taken to the emergency unit for epilepsy, but admitted into hospital because of Covid; and, although that appeared to have settled with the relevant Covid treatments, unfortunately the First Respondent was struck by a hospital acquired infection, and hence was in the hospital for such a long period.

28.      As to the death rate from Covid vaccinations, there had been 2,000 reports of death in the UK within a week of vaccination, but those reports did not identify whether the vaccination was the cause of death.  On investigation, it had been found that 86 of those who had died did so as a result of receiving the vaccine, 78 of them from receiving the Astra-Zeneca vaccine which has subsequently been withdrawn.  Dr Muscat was unaware of any significant number of reported deaths due to the flu vaccine. 

29.      Dr Adrian Noon is the medical director for primary care.  He agreed with Dr Muscat's evidence that it was in the best interests of the First Respondent that he should be vaccinated against Covid and influenza.  He described the First Respondent as very poorly when in hospital last summer, and said that any prolonged period in hospital reduced muscle bulk and the ability to take in nutrients.  Comparing the risk of death and other risks from Covid and influenza with the risks from the vaccines led to his firm advice that the First Respondent should receive the vaccines.  Professor Bradley agreed with all the medical evidence given by his colleagues and emphasised that the programme on vaccinations so far showed that it had been successful, for those who had been vaccinated, in reducing the risk of severe illness, hospitalisation and death.

30.      It is now right to address the Parents' objections in relation to the medical evidence.  They believe strongly that it was the result of an MMR vaccine delivered in October 1991 when the First Respondent was approximately 16 months old that his health suffered leading to the chronic neurological disease which he now has.  They were advised by Dr Andrew Wakefield that this was so - that the MMR vaccine might lead to behavioural regression and pervasive developmental disorder in children.  Indeed, the First Respondent was one of The Lancet Twelve, so named after the article in The Lancet which made those various claims in relation to the safety of the MMR vaccine in or about 1997.  We add that the claims have all been discredited, and that the research has subsequently been found to have been inherently unreliable; Dr Wakefield has been found to have acted against his patients' best interests, and to have mistreated developmentally delayed children, and he was struck off the UK medical register in or about 2010.

31.      Be all that as it may, the Parents believe that despite the fact that Dr Wakefield might have been wrong about a number of cases, he was not wrong about the First Respondent.  C told us that on the day his son had the MMR vaccination in 1991, he was fine; but in the evening he was in a very bad way, and by the next morning he was completely blank.  The Parents felt they had a different and disabled child.  He told us that it was hard to convey how tragic that was, and the vaccine had had a devasting effect on both the First Respondent and on his family.  He did not believe that any more risks should be taken with the First Respondent by vaccinating him again. 

32.      This evidence was generally supported by the Mother, who also told us that her family had had a number of difficulties with vaccinations.

33.      It is important to make a number of statements about the evidence of the Parents in this respect:

(i)        As with the assessment of the evidence of any witness, the Court has to determine whether that evidence is truthful and whether it is reliable.  We stress that we have no doubt that the evidence by the Parents was given truthfully.  They honestly believed that what they were saying was accurate.  However, as has been said by others, recollections may differ.  We are obliged to test the recollections against the documentary evidence which exists.  We think it is necessary to weigh the probability of the First Respondent's present medical condition being caused by the MMR vaccine because of the Parents' belief is that he is intrinsically susceptible to damage to his health from vaccinations.

(ii)       The medical evidence is that if there had been an adverse reaction to the vaccine, it is likely that it would have been obvious at an early stage, indeed as the Father described to us in his evidence.  However, we have looked at the general practitioner's notes for the period 5th July 1991 through to 20th July 1992, the MMR vaccine having been given to the First Respondent on or about 31st October 1991.  The medical notes show no record of reactions to the MMR vaccine, nor any attendance with the GP in that respect over that period.  Furthermore, the medical notes show different handwriting at different points in the record, and so it is quite clear that it would be obvious if there had been any amendment to those notes subsequently. 

(iii)      It is also noteworthy that the documentary evidence shows that a "yellow card" (a warning signal in relation to the MMR vaccine) was lodged with the Committee on Safety of Medicines in the United Kingdom on behalf of the First Respondent in 1997.  There is a lengthy letter from the First Respondent's general practitioner in March 1997 describing the medical history to that date; but there is no evidence of any yellow card in relation to the MMR vaccine having been filed with the committee previously, albeit the Mother is certain that one was filed in 1991.  It appears to us to be unlikely that if a yellow card had been filed in 1991, that there should be no record at all in the general practitioner's records.  Indeed, the Committee on Safety of Medicines had asked for a full medical history in 1997 because that was the first yellow card filed in respect of the First Respondent's receipt of the MMR vaccine.

(iv)      The Mother also told us that she personally had suffered a seriously adverse reaction to receiving an influenza vaccine in 1986, a vaccination that she was obliged by her employers to take, albeit it made her ill for three weeks.  She attributes the death of the Parents' first child, as a baby, to that vaccination because she became pregnant with that child in December of 1986, some weeks after receiving it.  The Mother also told us that her sister had contracted German Measles as a child but was nonetheless given the MMR vaccine at the age of fourteen.  However, twenty-four years later she was diagnosed with Multiple Sclerosis, and had been told by her consultant that the vaccination had caused the Multiple Sclerosis in the light of the fact that she had already suffered the natural disease as a child.  The thrust of her evidence therefore was that as a family there was a genetic predisposition to a problem with vaccinations.  We accept that she believes all this to be true, but there does not seem to be any evidence from medical records to support what is said.  Indeed, according to the general practitioner's letter in 1997, the First Respondent's older sister unfortunately died of a cot syndrome type death where on post-mortem it appeared that the child had suffered from some degree of muscular dystrophy. 

(v)       The parents are clearly not experts in medical science and would not claim to be.  When they expressed their opinions as to what has caused the First Respondent's difficulties, we naturally have to have regard to what they believe, but also to test that belief against the scientific evidence there is.  In the absence of any record of adverse reaction to the MMR vaccine at the time, and in the light of the findings that Dr Wakefield's research on the MMR vaccine was improperly completed and has no credibility, we have reached the conclusion that there is nothing to support the Parents' belief in the cause of the First Respondent's difficulties being attributable to the MMR vaccination. 

(vi)      In reaching these conclusions we wish to emphasise what was said in an earlier judgment.  The Parents love their son deeply and are motivated by the very best of intentions in the approach which they have taken.  We accept that, without accepting also that their solution to the issues in question is necessarily the best solution.  We respect their fears, but we cannot take a decision other than on the evidence which is before us.  Similar fears were expressed by the Parents in relation to the PEG operation in 2019.  Thankfully, those were not well-founded, and we can only hope that the medical advice is correct on this occasion.

34.      Accordingly, our conclusion on the medical evidence that we have received is that by this criteria it would be in the best interests of the First Respondent that he be vaccinated against Covid and influenza with appropriate boosters.  However, before concluding that is a decision which is overall in his best interests, we now have regard to the other relevant factors in the case.

Lifestyle considerations

35.      We heard from Mrs Winchester that she had most recently visited the First Respondent at the care establishment on Thursday 8th December.  He was physically well and was well groomed.  She described him as trying to engage with her and made good eye contact and indeed he appeared comfortable and relaxed, aware of and interested in his surroundings.  She was informed that he had been quite well and had at that time had fewer seizures, albeit he frequently required oral suctioning and he has frequent prescriptions for antibiotics.  His chair was well padded and the lap belts in use appeared minimal and proportionate.  They allowed him free movement.  As the community levels of Covid 19 were again rising, the staff team was working hard to manage his care so as to reduce the risk of cross-infection, and there was an excellent level of staff cover.  The First Respondent has regular visits from each of his Parents, and his Mother visits him daily and sometimes reads to him.  We heard from the Father that he would also visit very regularly and take the First Respondent out in his chair for walks. 

36.      The evidence from Mrs Winchester and Ms Gardner was that because the First Respondent is unvaccinated, it remains necessary for staff to be masked when working with him, and social interaction to be restricted so as to avoid exposure to the Covid or any other virus.  He was in effect being shielded.  Mrs Winchester described the impact of these restrictions in this way:

·              The First Respondent was in effect isolated, with every day being a repetition of the day before, described to her as 'groundhog day'. 

·              He is excluded from participation in a wide range of activities which otherwise he would be able to enjoy.  Accordingly, he had not been taken to see the Christmas lights or to the Mencap Christmas disco.  It meant that he was losing out on the opportunity to experience a change of environment, a chance to see and watch other people, and to experience light and sound.

·              He could not be taken to hydrotherapy which staff believed would promote muscle relaxation and enjoyment in the feeling of weightlessness.

·              He was unable to receive any assessments from the speech and language therapists because, with staff wearing masks, he was unable to read facial expressions and it was difficult to build better communication enabling staff to understand his wishes.

·              He was having minimal interaction with other residents at the care establishment, but when alert, he responded well to staff and they made every effort to talk to him and include him in what was going on.  He takes a keen interest in what other people are doing.

37.      Importantly, Mrs Winchester described the First Respondent's position as one where he lives in a shrunken world.  Other residents could go out and did so.  That meant he was often on his own.  He was not able to join in with outside activities.  When the same point was put to Ms Gardner, she explained that other residents had been able to go out, but, following government guidelines, the staff had not felt able to take the First Respondent out because, unlike the other residents, he had not been vaccinated.

38.      As far as hydrotherapy was concerned, the only pool available was at The Cheshire Homes, and the policy there was that unvaccinated people could not enter.  Accordingly, he had not been assessed there for hydrotherapy, because there would be no point in doing so for as long as he remained unvaccinated.  Under cross-examination from Advocate Jones, she emphasised that, under the government guidelines, residents should be vaccinated and that, as a regulated care home, it was really not open to them not to follow that advice.  The regulated nature of the home meant they were obliged to do so.  It was put to her that the Parents could take the First Respondent out, and in those circumstances he could in fact be exposed to the same risks as those to which he would be exposed if taken out by members of staff.  Her response to that was that she did not believe that the Parents were doing so, but if that proved to be incorrect, she would have to have conversations with others - by which we took to mean both her colleagues and her regulators.  We did not understand her to be saying that those conversations might result in a quite different regime being applied by the care establishment.  More to the point, our understanding was that those conversations would be directed at what stance, if any, ought to be taken with regard to the appointment of the Father as the First Respondent's delegate in health and welfare matters. 

39.      On the evidence before us, vaccination would remove many of the restrictions which currently affected the First Respondent's day-to-day living. 

40.      In closing, Advocate Jones put to us that government policy was playing too large a part in the care arrangements for the First Respondent.  His primary objection was that no other options have been considered.  If all the medical risks were equal - that is to say the risk of vaccination as against the risk of Covid or influenza - the care establishment could have discussions to find a solution which would improve the First Respondent's quality of life.  These would have to involve the regulator but there is no evidence that such a solution is not possible.  At present it was the case that the First Respondent could participate in whatever happened within the care home.  The restrictions on him in that respect might be unnecessary if the discussions with the regulator took place.

41.      We consider this approach is unrealistic.  One can expect neither a care home nor the Care Commission as regulator to ignore government guidance as to best practice.  The guidance is there because the government has been satisfied that the medical and other advice ought to be followed, having regard to its duties to the community as a whole.  As is clear from the medical advice that we have heard, vaccination does not mean that the vaccinated person is incapable of catching the Covid or influenza virus, but it does mean, or seems to, that the results of infection will be less severe.  To ignore the government advice and take the risk that, unvaccinated as the First Respondent would be, he can nonetheless participate fully in the activities of the care home would be, regardless of the risk to himself, to put his interests above those of the other inhabitants who have been vaccinated but would nonetheless be at some risk if they contracted the virus.  It is not likely either that the care establishment would consider that to be appropriate, or, if it did, that the regulator would agree.

42.      As to hydrotherapy, Advocate Jones made the point that much has been made of the opportunity which the First Respondent is missing out upon.  But no one has access to Cheshire Homes at the moment and he said this is a false dawn.  He has not been assessed and there is no way of knowing whether he would be taken on for hydrotherapy there.  It seems to us the answer to this point is that no one can expect Cheshire Homes to change their policy simply to accommodate the refusal of the First Respondent to be vaccinated.  It is true that he has not been assessed for hydrotherapy yet, but there is no point in doing so if he could not have access to the hydrotherapy pool anyway.  Once he has been vaccinated, if he is, that assessment can be carried out and hydrotherapy, considered probably to be of potential help to him, might become available.

43.      As regards the absence of speech therapy, we add this. The 2016 Law is premised upon the need to take account of the wishes of the patient wherever possible.  That requires firstly that the patient understands the decision which has to be taken and secondly that he can communicate his wishes in its respect.  Unfortunately, the First Respondent is some way away from being able to communicate adequately for this purpose.  Speech and therapy progress so far has been limited and is quite impossible for as long as those conducting that therapy are required to wear protective face masks.  Once vaccination has taken place, if it does, the face masks can be replaced with the transparent mask which will enable speech therapy to take place.  That seems to us to be obviously in the best interests of the First Respondent. Furthermore the use of the transparent mask will generally improve the First Respondent's ability to view and react to other people.

Conclusion

44.      We put to Advocate Jones the hypothetical question that if the medical risks were all equal, the lifestyle benefits from vaccination would clearly come down in favour of the proposed treatment.  But in fact, in our view, the medical risks are not evenly balanced.  There is a much more significant risk to the First Respondent from not being vaccinated not only because of the mortality rate from Covid and influenza for unvaccinated people with his vulnerabilities, but also because there is an increased risk of hospitalisation with the result that his general state of health becomes more frail.  By contrast the risks of vaccination appear to be very low, indeed as Advocate Jones submitted at one point, infinitesimal.

45.      We were referred to a number of English cases.  These included SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14, NHS Tameside & Glossop CGC v CR [2021] EWCOIP 19, Re H (A Child) (Parental Responsibility Vaccination) [2020] EWCA Civ 664 and ICB v RN (2022) (04 January 2023), all of which concerned (as did others of those cited) disputes as to whether the Covid vaccine should be administered to those lacking capacity. We found them interesting but not authoritative for the reasons described. Nonetheless, we have some sympathy for the remarks of His Honour Judge Burrows in the last mentioned of these cases where he said that he was concerned that the Court was being asked to engage in an activity for which it is ill equipped, namely to act as adjudicator as to whether the vaccines which are part of Government policy are really safe, as indeed the evidence before us from the experts would demonstrate.

46.      We feel for the Parents.  They fear that if the First Respondent is vaccinated, he may well be taken from them altogether, or even if that does not occur, his overall health will degenerate more quickly.  We recognise entirely that they can, if they choose, feel that it is all very well for the Court to take a balance of risk decision in circumstances where, if that decision is wrong, the results would be sad but not shattering.  That is not the position in which they find themselves, because they would be entirely shattered were the result to be as they fear; and, if he could express his wishes, we have no doubt that the First Respondent would wish to give some weight to those fears.

47.      At the same time, the First Respondent is entitled to the best quality of life that, given his state of health and disabilities, can reasonably be arranged for him.  We think that keeping the First Respondent alive is an objective, which indeed is one purpose in the proposed treatment, but it is not the only objective.  If he could express his own wishes, we are sure that he would want to have the best quality of life he could reasonably enjoy.  In those circumstances we have no doubt that the right best interests decision is that the First Respondent be vaccinated against both Covid 19 and influenza and we accept the general philosophy that boosters should be applied when medically appropriate because the protection which will be available to him once he has been vaccinated will wane with time, as will such immunity as he has as a result of suffering from Covid in the summer of 2022.

48.      The Minister has put a draft order before us with which we agree subject to just one comment.  The draft order authorises the Minister, notwithstanding the absence of consent from the Father as delegate for health and welfare purposes, to the administration of the recommended vaccines, to administer those vaccines to the First Respondent as set out in the vaccination care plan.  Reference to that plan shows that, subject to checking the latest Green Book recommendations, both vaccines can be administered at the same time and are intramuscular.  In our view, there would be merit in a starting point which assumes that the Covid 19 vaccine would be administered first and the influenza vaccine would be administered not at the same time but at least a month later.  The reason for that view is that this approach seems to us to reduce even further the risk of an adverse reaction; and also it carries with it the logical result that if there is an adverse reaction, one would know which vaccine has caused that reaction.  Dr Muscat told us that at present Covid 19 is very much present in the community, but on the whole the influenza virus seems to be reduced in effect as the winter proceeds.  That would suggest that there is no particular harm at the moment in the influenza vaccine being administered at a later stage.  Ultimately, however, we make it clear that whether the vaccines are administered at the same time or separately is a medical decision and the Minister is authorised to follow the advice of the vaccination panel in that connection. 

49.      For these reasons we approve the application of the Minister and make the Order sought.

Authorities

Capacity And Self-Determination (Jersey) Law 2016.

In the matter of B (Medical) [2019] JRC 158

In the matter of B (Medical) [2020] JRC 153.

Mental Capacity Act 2005.

Aintree Hospitals NHS Foundation Trust v James [2014] AC 591.

Briggs v Briggs [2016] EWCOP 53.

SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14.

NHS Tameside & Glossop CGC v CR [2021] EWCOIP 19.

Re H (A Child) (Parental Responsibility Vaccination) [2020] EWCA Civ 664.

ICB v RN (2022) (04 January 2023).


Page Last Updated: 13 Feb 2023


BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/je/cases/UR/2023/2023_008.html