I want to talk about the case of North Yorkshire CCG v E and others, which was heard only recently and explored whether or not it was in E’s best interests to be vaccinated against coronavirus. At first glance, it seems that this is a settled issue. Certainly, there is now a consistent stream of case law on this issue that provides a clear framework for decision-makers and the court to follow. So why is this latest decision interesting at all? After all, the approach followed and the conclusion reached are consistent with the previous published decisions.
There are three reasons why I think this judgement is still worth a read.
Firstly, the majority of the published cases were decided at a time when coronavirus transmission in the community was very high, as were hospitalisation rates and high numbers of people were becoming seriously ill or dying as a result of the virus. Because of that, government guidance still advocated for strong virus prevention measures and many restrictions were still in place.
E’s case went before the court at a very different time. Whether due to the vaccination programme’s effectiveness, general weakness of the prevalent strain or any other number of factors, the government was advocating for a return to normal, if a cautious one. Guidance around vaccination had not changed, but it is understandable why E’s family (some of them at least) considered that the danger had largely passed. And since E had stayed safe and well so far, there was no need for him to be vaccinated. Or so that train of thought goes.
On the other hand, there is an argument that because restrictions were being relaxed, the risk for E, as an unvaccinated and clinically vulnerable man, was actually increasing. Others around him were likely to be less careful, after all, and so he might well be exposed to the virus. Whilst his sister argued that the current Omicron variant is less dangerous, this did not necessarily mean that the risk had been removed for E and his GP still argued for E to receive the vaccine.
There was no denying though, that the risk profile was different now, compared to earlier in the pandemic. And so the balance between the risks must be more finely balanced that it might have been in earlier cases.
The second reason this case is interesting is because E had previously been awarded compensation for damage that occured as a reaction to the whooping cough vaccine. This was decades ago, and made on the evidence available at the time. It is alluded to that a more modern court or tribunal might make a different decision, but the Court of Protection could not disregard this from it’s decision-making. The argument, as framed by his sister, was essentially ‘once bitten, twice shy’. And it is understandable that she would be especially cautious in these circumstances, given her true belief that E had sustained significant cognitive impairment as a result of that vaccine, and that this belief was supported by the findings of a specialist tribunal.
The passages dealing with this, and the sister’s assertion that E would be against the vaccine if he was able to express a view, because of his previous experiences are very interesting reading. Mr Justice Poole grapples with the differing views of family members and refrains from speculating as to what E might have wanted, given that family members all with the same upbringing had reached different decisions. It is a very helpful illustration of the difficulty involved with trying to establish the beliefs and values that might influence P’s decision-making.
The third reason the decision is interesting is because it contains helpful guidance on how the court deals with expert evidence sought in contravention of the practice direction. Mr Justice Poole did not take well to the evidence of the purported expert in this case, concluding that he was not an ‘expert’ for the purposes of the Court of Protection rules and practice directions. He was not instructed as a single joint expert, and it seems unlikely the other parties would have agreed his instruction in the proceedings.
Indeed, by sending details of the case to the purported expert, the family members had breached the transparency order in the case, which was in place to protect E’s privacy. No punitive action was taken, but it nevertheless illustrates the real dangers of seeking an expert outside of the court’s processes. I imagine that particular doctor might also be more cautious in the future.
Mr Justice Poole also made some observations about the approach to be taken regarding future vaccinations, which have been interpreted as somewhat unhelpful. I understand that those comments were made to address questions asked regarding objections by family members to other, more routine, vaccinations such as annual flu vaccinations. Such comments are not binding though, and it is still safest to have the court determine disputes as to coronavirus vaccinations for now.
All things considered, the judgement is worth a read, in my view
In case it isn’t obvious from the fact I still haven’t identified the authority I worked for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation