England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION
IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
IN THE MATTER OF AD

		Milton Keynes
		07 May 2021

Her Honour Judge Brown sitting at Milton Keynes.

This court had adjourned this hearing in order for Mrs. C to gain legal representation. Mrs. C appeared in person. No application for a further adjournment was made.

This court heard an application by the CCG for the following declarations and orders;

IT IS DECLARED PURSUANT TO SECTION 15 OF THE MENTAL CAPACITY ACT 2005 THAT:

1. AD lacks capacity to:

a. conduct these proceedings;

b. make decisions regarding the administration of a Covid-19 vaccination and any booster vaccinations; and

c. make decisions regarding medication (including anxiolytic and pain relief medication) to be given in connection with the administration of his Covid-19 vaccination.

2. It is lawful for the first and second dose of a Covid-19 vaccination to be given to AD as soon as practicably possible in accordance with the care plan (as amended and updated) attached to this order, that care plan including provision for the administration of covert anxiolytic medication prior to receiving the vaccine and covert pain relief (as required) following administration; the timeframe between the first and second dose to be determined by those responsible for AD's healthcare including his General Practitioner. Such care plan may be updated and amended to incorporate any learning from any previous (attempt at) administration of the Covid-19 vaccination, provided that such amendments or updates do not permit the use of force.
3. It is lawful for booster dose(s) of a Covid-19 vaccination to be given to AD, in accordance with the care plan (as amended and updated) attached to this order, as and when his General Practitioner considers the same appropriate, providing that the earlier doses of the vaccination have been successfully administered in accordance with the care plan (as amended and updated) attached to this order and provided that any amendments or updates to the care plan do not permit the use of force.]

IT IS ORDERED PURSUANT TO SECTION 16 OF THE MENTAL CAPACITY ACT 2005 THAT:

4. It is in AD's best interests to be given the AstraZeneca Covid-19 vaccination as soon as practicably possible in accordance with the care plan (as amended and updated) attached to this order, that care plan including provision for the administration of covert anxiolytic medication prior to receiving either dose of the vaccine and covert pain relief (as required) following administration, and providing that any amendments or updates to the care plan do not permit the use of force. The timeframe between the first and second dose is to be determined by those responsible for AD's healthcare including his General Practitioner.
5. It is in AD's best interests to be given booster dose(s) of a Covid-19 vaccination, in accordance with the care plan (as amended and updated) attached to this order, as and when his General Practitioner considers the same appropriate, providing that the earlier doses of the vaccination have been successfully administered in accordance with the care plan (as amended and updated) attached to this order and provided that any amendments or updates to the care plan do not permit the use of force.]

The court declared that AD lacks capacity to make decisions in respect of the administration of the Covid 19 vaccination, that it is lawful for AD to be given two doses of the Astra- Zeneca Covid 19 vaccine in accordance with the care plan (no use of force) but refused the application to allow for the administering of the booster in a few months' time, without agreement or further application to the court.

These are the reasons for my decisions;

AD is a man in his thirties, who lives in supported living with a 24/7 package of care and support from a private Care Provider, commissioned by the Local Authority, not by the Applicant CCG. AD has diagnoses of moderate Learning Disability, Down's Syndrome and Autism. He is clinically overweight, with an estimated BMI of 31. He is of BAME heritage. The evidence before the court is that these factors make AD 'clinically extremely vulnerable' to Covid-19. AD experiences significant health anxiety and finds health interventions distressing: he consistently refuses to engage with them.

AD is unable to comply with social distancing measures or wear PPE such as a mask, and he is a sociable person.

A letter from AD's social worker notes, [H19]:

It is important to note that [AD] is a young man who likes to access the community. He enjoys going out with staff visiting local restaurants, parks and other places of interest (when permitted) and must have 1-1 care at all times due to the risk posed to him. [AD] has no understanding of COVID 19, social distancing, the need to not touch surfaces and the overall risk he is exposed to by the Covid 19 virus.

AD has also been described by his own care provider, "AD has no concept of social distancing and will run to hug those staff he has a particularly positive relationship with".

In a letter from his senior Learning Disability nurse it is noted at [H20]:

DYNAMIC FACTORS: [AD] does not engage with any health appointment and resists all investigations, whether they are invasive or non-invasive. Our records indicate this is a long standing issue. This behaviour which challenges services would mean that in the event that [AD] were to contract COVID-19 he would likely be resistant to any cute healthcare which may be required to manage his health needs.

The CCG supported by the Official Solicitor submits that AD is therefore at increased risk of contracting the virus due to his inability to take measures to prevent the same; and he would be likely to refuse the healthcare needed to treat the virus if he were to contract it. AD's risk of contracting the virus will further rise when he resumes community activities as lockdown measures ease.

The CCG has no direct role in AD's care and support, but has brought this application in order to ensure that his best interests in relation to vaccination are determined expeditiously. The CCG consider that AD should receive his Covid-19 vaccine as soon as possible: The CCG argues that the benefits far outweigh the risks. AD's father agrees, as do all professionals involved in caring for AD, but AD's mother, Ms. C, disagrees. Given the substantive disagreement from AD's mother, the CCG as a concerned public authority has placed this matter before the Court of Protection.

The CCG has completed a thorough best-interests analysis which is at [J4-9] of the bundle.

The substantive issues before the court are:

a. Whether AD lacks capacity to make the decision whether to receive his Covid-19 vaccine (and any supportive medication such an anxiolytic and pain relief); and

b. Whether it is in AD's best interests to receive his Covid-19 vaccine in accordance with the proposed care plan at [F1].

c. Whether the court should approve the administering of the Covid 19 booster at this hearing, to be administered in several months' time.

AD's capacity

All those involved with AD agree that he lacks capacity to make a decision about the Covid-19 vaccination and any medication to facilitate its administration: as well as any anxiolytic and/or pain relief medication.

The court has considered at length the COP3 at [B1] which sets out the capacity evidence of the Senior Community Learning Disability Nurse. The Senior Community Learning Disability Nurse confirms AD's diagnoses at 7.1 [B6]. He explains at 7.2 and 7.3 that during the capacity assessment on 14 April 2021, AD was unable to express understanding by any means. The Senior Community Learning Disability Nurse communicated with AD using AD's usual communication method (verbal communication), and also tried to use NHS Easy Read information and a Very Easy Read leaflet. He also used slight touch to indicate the injection site. AD did not respond to any communication, and was unable to answer any questions about the need for the vaccine or the procedure. The Senior Community Learning Disability Nurse concluded after this assessment that AD was unable to understand the information relevant to the decision concerning the vaccine, and therefore that AD lacked capacity to make the decision.

The Operations Manager of Care Provider's assessment of AD's capacity is at [D1]. She is the Operations Manager of AD's care provider. Her assessment sets out how staff who care for AD went through information about the vaccine, supplied by MIND, with AD on four occasions in January. On all occasions when a picture showing a vaccine being administered was used, AD shook his head and said 'no'. However, he demonstrated limited understanding of the information given to him about the Covid-19 virus. The manager of care provider gives her view that AD has "little or no understanding of what the Covid-19 infection is" [D1]. She states that her assessment is based on "our knowledge and experience of working closely with AD over the last 2 years" [D3].

Nurse undertook a further assessment of AD's capacity in relation to making decisions about anxiolytic medication and pain relief medication [D4-6]. During his assessment, he confirmed that AD's preferred method of communication was adopted and that easy-read information regarding the medications were provided [D5]. He concluded that AD is unable to understand the relevant information or weigh it in the balance and therefore that AD lacks capacity to make such decisions.

The CCG argues that the evidence is sufficient to demonstrate on the balance of probabilities that AD is unable to make the decision for himself in relation to the Covid-19 vaccination, anxiolytic medication and pain relief medication per s.2 of the Mental Capacity Act 2005 ("the MCA"). It is argued that the first of the four limbs in s.3(1) of the MCA is met: AD is unable to understand the information relevant to these decisions, per s.3(1)(a). That is a position with which the Official Solicitor agrees. Mrs. C does not dispute capacity.

The court is therefore satisfied that AD lacks capacity to decide whether to receive his Covid-19 vaccination and related anxiolytic and pain relief medication in accordance with the proposed Care Plan dated 16 April 2021.

AD's Wishes and Feelings

AD has a history of refusing healthcare intervention and will say "no" when introduced to a healthcare professional [B9]. AD's IMCA, states that AD has always been resistant to medication intervention (possibly caused by a traumatic incident as a child) [H5-H6]. The applicant recognises that the experience is one that could be distressing to AD and have proposed a plan in respect of sedation before the vaccine and the manner in which the vaccine is delivered which is designed to cause AD the least distress [F1-F5].

It is reported that staff members caring for AD have attempted to go through the easy read social story concerning Covid-19 virus and the vaccine. It was noted that AD had limited capacity but clearly objected to the injection and would shake his head to verbalise 'no' [H29-H30].

AD's Participation

The Official Solicitor has carefully considered AD's participation in these proceedings. The CCG applied for permission not to inform AD of these proceedings because it could distress him and impact on the provision of intervention. This view has since been supported by IMCA, AD's parents and the manager of care provider. The Official Solicitor has accepted this position. As a result of the likelihood of causing AD distress, AD disengaging with professionals (thereby preventing the success of the vaccination) and as a meeting would likely not provide any more information about AD's wishes and feelings, it is considered disproportionate to notify AD of the proceedings.

Furthermore, IMCA has expressed to AD's representative, Ms Bergin, that AD has varying levels of engagement with videocall. Therefore, in order to meet with AD to seek to obtain his wishes and feelings, it would likely require a face to face visit; given AD's vulnerability if he contracts Covid-19 this is an additional factor considered in the decision not to meet with AD.

AD's best interests in respect of receiving the Covid 19 A-Z vaccine.

All persons concerned with AD's care, as listed below at (a)-(f), consider that it is in his best interests to receive the Covid-19 vaccine. AD's mother known as Mrs. C strenuously opposes the administering of the Astra-Zeneca vaccine (or any Covid vaccine.). The following support the application;

a. AD's father (AG);

b. Nurse, Senior Community Learning Disability Nurse;

c. AD's social worker from the Local Authority;

d. The operations manager of AD's care provider;

e. IMCA, AD's Independent Mental Capacity Advocate;

f. AD's GP.

Previously Mrs. C held a Lasting Power of Attorney for AD in respect of both health and welfare and finances, but that these were revoked following an application made by the Local Authority earlier this year.

Mrs. C set out her concerns in emails dated 1 March 2021 [E1-18], 9 April 2021 [E19-103] and 22 April 2021 [E127 -131]. The court heard Mrs. C who set out her concerns and opposition to the administering of the Covid 19 vaccine.

Mrs. C's concerns.

6. Mrs. C considers that it is not in AD's best interests to receive the vaccine for the following reasons:

(i) The force or restraint would be too traumatic and destroying for him.

(ii) AD will not be able to trust people and his life will be filled with fear.

(iii) It will cause him physical or psychological damage, a loss of dignity and emotional and mental trauma.

(iv) It would be best to wait as there may be another form of treatment which would be better for AD.

(v) AD had some painful experiences at his previous care home. He has come a long way to restoring his identity and is able to trust the care provider's staff.

(vi) It may cause AD to exhibit uncontrollable behaviour with pain and hurt.

(vii) It would be an infringement on his human rights under the European Convention on Human Rights, Articles 2, 3, 5, 6, 8 and 29.

(viii) It would amount to unlawful use of restraint and a potential claim for assault, unlawful deprivation of liberty and scrutiny from Regulators.

(ix) Restrictive intervention should only be used as a last resort.

(x) AD had mild symptoms in early 2020, he had a severe cough.

(xi) AD is clinically severely vulnerable but he is healthier than the average person in any given community sector, he hardly ever gets a cold and has never had any health ailment and has no underlying diseases.

(xii) AD has allergies to eggs, cheese and other products, giving him the vaccination could cause an anaphylactic shock.

(xiii) When AD was a baby, he had a routine vaccination and was rushed to hospital with pneumonia for days with a high fever.

7. In respect of the vaccine itself Mrs. C states:

(i) The Government has announced that the pandemic is over and therefore the risk of contracting Covid 19 is now very low.

(ii) The government announced the vaccination does not guarantee prevention of Covid-19 or stop transmission.

(iii) It is not proven safe and the testing and trials for safety has not been completed.

(iv) The incidence of adverse side effects is very high.

(v) It is not possible to give treatment if effects arise, especially with anaphylactic shock.

(vi) Vitamin D and C are better treatments.

(vii) There are two injections and another injection may be required if there is another new variant of the virus.

(viii) Centers for Disease Control and Prevention (CDC – an American nation public health agency) announced Covid-19 has a recovery rate of 99.97%.

(ix) Mrs. C considers that when immune systems now attack proteins, it cannot distinguish between proteins which sit on the virus and those which sit on our own cells. In the long term (or even in 5 months), we will start to see all the people who have taken the vaccine fall very sick, have organ failure and die.

(x) Mrs. C describes that many specialists expect even more people to experience deadly side effects after the next "quack" dose and when they come into contact with natural virus similar to SARSCoV2. It has not been shown that this experimental gene therapy protects against infection and serious disease (Covid-10) [E3]. Even the producers admit that we have to live with these viruses (and vaccines) forever.

(xi) 'The allergic reactions can be fatal. And their injection is not a "vaccine." This experimental gene therapy (EGT), which they call covid-19- "vaccine" has not been shown to prevent infection/transmission or disease.'

(xii) 'No vaccine or genetic treatment protects as well as vitamin D3 (4000 IE) and zinc (50 mg). Even the Pfizer CEO admitted himself that he will not be taking the vaccine.'

(xiii) Mrs. C addresses the ingredients in the vaccination and appears to reference this when stating the vaccine contains a 'Chimpanzee Adenovirus produced in a Genetically Modified human embryonic kidney.' Furthermore, she questions if it contains MRC-5 which she states is aborted fetal and other DNA which people have the right to decline.

These concerns will be addressed below.

Mrs. C has made further points against the vaccine; "It is in the long term (or even as short as 5 months) that we started (sic) to see all the people who have taken the vaccine to fall very sick and have organ failure and will die", and "many specialists expect even more people to experience deadly side effects after the next 'quack' dose and when they come into contact with natural virus similar to SARSCoV2, weeks or months later", and "No vaccine or genetic treatment protects as well as vitamin D3 (4000 IE) and zinc (50mg)" and, erroneously, "the current law is parents have to give consent for any vaccination and if they don't give consent, then it is a criminal offence to vaccinate".

Pages [E6-18 and E21-103] of the bundle are documents Mrs. C has provided: a mixture of documents, screenshots of websites including Twitter, photographs and hyperlinks. This set of documents, the origin of which is unclear, include statements to the effect that the vaccine contains "nanoparticles which allow definitive control of people vaccination, thanks to 5G" and "4 fragments of HIV which give to vaccinated people: AIDs syndrome and immunodeficiency" [E24]. The diagram at [E34], duplicated at [E76], appears to demonstrate that "sensor nanoparticles" will be injected into vaccine recipients which will then interact with mobile phones in order to send information via mobile 5G networks to the "cryptocurrency system". The diagram features Bill Gates. At [E36] is a narrative concerning the intention of the "New World Order" to "fully control and enslave the world's population by monitoring and weakening it" through the Covid-19 vaccine; similar appears at [E77].

In respect of Mrs. C's submissions, Ms. Rickard makes the following submissions that many of Mrs. C's arguments are,

"well-known, extraordinary and dangerous misinformation concerning the Covid-19 vaccine, of the kind which is rife online. It should be given no weight in the Court's assessment of AD's best interests. Per Hayden J. in SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14 (at paragraph 31), it is not the function of the Court of Protection to provide a forum for ventilating speculative theories. The Court must make its decision in light of the credible professional evidence concerning AD, and concerning the risks and benefits specific to him."

Addressing two of the key points put forward by Mrs. C;

Use of force.

The plan put forward for the administering of the vaccine does not use force. This court has not given permission for force to be used.

Senior Learning Disability Nurse agrees with Mrs. C that force or restraint should not be used. Force or restraint is therefore not an issue.

Distrust will be caused.

The professionals who have drawn up the proposed Care Plan do not believe the administration of the vaccine in accordance with the Care Plan will have this effect.

The court notes that Mrs. C wishes that AD reside with her alone in her home. She argued that he could effectively isolate with her and she can care for him.

The court did not have before it any application in respect of AD's best interests to move him from his sheltered accommodation. The current evidence before the court is that AD's needs are being met in his current accommodation.

The plan is as follows;

AD will have received a mild sedative in advance of the vaccination, which in addition to the sedative effect will have the effect of preventing memory formation. The nurse administering the vaccine will not be a member of AD's care team. He/she will swiftly enter the room, administer the vaccine then leave immediately. AD will be wearing a short sleeve top to allow quick access to his deltoids. Before, during and after the procedure AD will be distracted by members of his care team. This plan was scrutinised and questions were asked on behalf of the Official Solicitor. Having reviewed the plan, this plan is now approved by the Official Solicitor on behalf of AD.

The views of others.

AD's father AG whilst not present at the hearing (having been given notice of the hearing)

Operations Manager of AD's care provider, has confirmed that AD's s father supports the proposed plan to vaccinate AD [H27]. Ms Bergin has also exhibited to her COP24 witness statement a telephone conversation with AG in which he confirmed his view that it is in AD's best interests to receive the vaccine without delay.

Professional evidence.

AD's social worker, has stated that there is an urgent need for AD to have the Covid-19 vaccine [H19]. AD's social worker states that AC's views are not substantiated by medical evidence. In respect of AD, he has no understanding of social distancing and the need to not touch surfaces or the risk he is exposed to [H19].

AD's IMCA outlines in her latest report dated 19 April 2021 that the issue of whether AD receives the vaccine should be referred to court but considering the potential risk to him administering the vaccine accords with the principles in the Mental Capacity Act 2005 (MCA) [H25]. Ms Bergin has also filed an attendance note from speaking to AD's IMCA who expressed concerns about AD accessing the community without having been vaccinated and noted the importance to AD of engaging with activities in the community.

The Operations Manager states that AD did not show any adverse reaction to staff having to wear PPE but he has no concept of social distancing and will run and hug staff he has a particularly positive relationship with [H29]. The Operations Manager states that it is in AD's best interests to have the vaccine in accordance with the plan proposed [H30].

AD's GP, states that the risk of Covid-19 is reduced in the order of 60-70% after the first dose and more than 85% after a second dose. AD's GP also outlines the potential risks arising from the vaccine [H12-H13]. In respect of the proposed sedative, Temazepam, the side effects include anxiety, headaches, nausea, vision disorder etc [H13]. In respect of the Oxford Astra Zeneca vaccine there are common side effects and the issue of blood clotting is extremely rare. AD's GP considers it is in AD's best interests to have the vaccine as proposed [H13].

Senior Learning Disability Nurse comments that it would not be in AD's best interests to delay until August/ September 2021 to see whether there are alternative treatments. It is his view that it is in AD's best interests to have the Covid-19 vaccination [H35].

The Deputy Director of Quality, on behalf of the applicant has provided three witness statements. In the CCG's Deputy Director of Quality's second witness statement he addresses the concerns raised by Mrs C[E133-E136]:

(i) It is difficult to comment on AD's wellness or the strength of his immune system but the guidance from the NHS is clear that all adults with Down's Syndrome are considered extremely clinically vulnerable to Covid-19.

(ii) The care provider does not consider that the proposed plan will have a negative impact on the relationship between AD and his support team.

(iii) He is not aware of any confirmed evidence that Vitamin D and C and zinc are effective to prevent a person from contracting Covid-19.

(iv) The GP does not have any allergies recorded for AD and he has been given food with eggs in without adverse reaction.

(v) It would not be in AD's best interests to wait for "anti-viral" treatment or Allacetro because both are not aimed at immunizing against Covid-19 but treating it.

(vi) Liquid or nasal forms of the vaccination are not certain and, in the event this is successfully developed it will be some time away and the delay is not in AD's best interests.

(vii) The EU Regulator and UK Regulator has not linked blood clots to the Astra Zeneca vaccine definitively.

(viii) Hydroxychloroquine use instead of the Covid-19 vaccination is not recommended; it has significant potential side effects; requires close monitoring with regular blood tests; and a study is referred to which concluded it is unlikely to be of benefit for preventing Covid-19.

8. The CCG's Deputy Director of Quality concludes that it is in AD's best interests to have the Covid-19 vaccine in accordance with his Care Plan [E136].

The CCG's Deputy Director of Quality sets out in his first witness statement the proposed plan to administer AD with the vaccine [E106-E108 §14-21]. The CCG's Deputy Director of Quality sets out that the Astra Zeneca vaccine can be transported and administered in AD's own home (unlike the Pfizer or Moderna vaccine) [E107 §16]. On 15 April 2021 a multidisciplinary meeting was held where it was determined to be in AD's best interests to receive the Astra Zeneca vaccine. The proposed Care Plan envisages AD receiving an anxiolytic in advance of the vaccination. It is proposed that AD receives Temazepam in a cold drink [F4]. This has the benefit of relaxing AD and preventing short term memory formation [E107 §20]. It is proposed that the medication is given covertly [E108 §20]. It is proposed that his GP provide AD with PRN paracetamol should AD experience any side effects [E108 §21].

The Official Solicitor raised a number of questions in respect of the proposed Care Plan which have been addressed by the CCG in a response dated 29 April 2021:

(i) It is not proposed to inform AD of the vaccination as this would increase his anxiety and the sight of a needle is likely to distress him. It is noted that easy-read leaflets have already been provided and explained to AD;

(ii) It is considered unwise to continue with the vaccine if AD presents with signs of aggression. The anxiolytic is to be taken with breakfast and a carer who AD likes will sit with him whilst he has breakfast/ drink to maximise the chance of AD having the sedative;

(iii) If AD shows signs of aggression or the sedative does not appear to be working effectively the vaccine will be cancelled and rearranged;

(iv) The person administering the vaccine will not be part of AD's care team. Their intervention will be brief. It is noted that the needle for the vaccine is small and will reduce the likelihood of AD responding to it when under the sedative;

(v) There has been consideration of administering the vaccine without the need for covert anxiolytic medication including (i) no alternative measures. There are concerns about AD's general anxiety to health professionals and also a needle phobia (ii) use of desensitisation technique. It is noted that this has been attempted for the purpose of cutting AD's nails but has been of limited effect. The SLDN has recommended the use of an anxiolytic which would help relax AD and also prevent him from remembering the appointment. Administering the vaccine without the anxiolytic medication would make it more likely that AD would be combative or distressed and cause longer term emotional trauma, which could jeopardise a second dose and further health intervention;

(vi) AD has been prescribed diazepam in order to facilitate cutting his nails but this was of limited effect due to the timing of the diazepam being given;

(vii) The likelihood of AD experiencing side effects from the sedative is low. AD does not present with any contra-indication for the medication. AD's GP has also confirmed that he is unlikely to experience side effects from the medication;

(viii) It is noted that Temazepam has a shorter half-life than Diazepam and the sedating effects will wear off sooner. It can also be prescribed in an oral solution format so AD can take this with a cold drink;

(ix) AD has had soluble paracetamol prescribed in the past;

(x) AD was not registered at the GP practice in 2016 and 2017 and it is unclear when he received the influenza vaccine;

(xi) It is noted that AC has stated AD had an adverse reaction to a childhood vaccination but his father denies this;

(xii) AD does have a Positive Behavioural Support Plan (PBS) but the existing plan reflects behaviours that AD's care providers report are no longer presenting;

(xiii) Desensitisation programmes have been tried in the past but did not work;

(xiv) If AD does not take the Temazepam with a cold drink there would be a conversation with the pharmacist regarding changing the means of administration;

(xv) Following the administration of the first dose there will be an evaluation of the risks/ advantages of a second dose to assess the benefits of a second dose.

Mr. Fernando sets out the position of the Official Solicitor as follows,

"The Official Solicitor considers that the applicant's Care Plan is carefully considered and the responses to questions posed are reassuring. Further, it is not considered that the objections raised by Mrs. C both in respect of (i) the purported effect on AD of receiving the vaccine (ii) issues with the vaccine itself outweigh the benefits of AD receiving the vaccine. It is of note that AD has no concept of social distancing or why it is required. He is social and regularly partakes in activities which would expose him to the virus. He is vulnerable because of his ethnicity; diagnosis of Learning Disability, Downs's Syndrome and Autism and his high BMI. The Official Solicitor therefore considers it is in AD's best interests to receive the vaccine in accordance with the Care Plan [F1-F5]. A balance sheet has been annexed to this position statement setting out points that have been considered in order to reach the position that it is in AD's best interests to have the vaccination. The balance sheet is not purported to be comprehensive of all of the issues taken into account.

In reaching this position the Official Solicitor has considered the recent case law and conducting a balancing exercise consider the factors of particular relevance to AD. In E (Vaccine) [2021] EWCOP 7, SD v RBKC 2021 EWCOP 14, NHS Tameside & Glossop CCG v CR and SR [2021] EWCOP19 the court was particularly persuaded to approve the proposed Covid-19 vaccinations due to the vulnerability of the individuals. As set out AD is considered extremely vulnerable to if he contracts Covid-19."

The court has been reminded by Counsel for the CCG and the Official Solicitor Hayden J's comments in the case of SD (set out above.)

I respectfully agree with the submissions of both Ms. Rickard and Mr. Fernando that the concerns submitted by AC in relation to the efficacy and basis for the vaccination are not for the court to determine. The court is of course concerned with the particular application before it.

On behalf of the Official Solicitor Mr Fernando also submits that the principle in s.1(6) of the Mental Capacity Act 2005 that any act done should be in achieved in a way that is less restrictive of the person's rights and freedom of action. Furthermore, that s.6(3) MCA 2005 provides that acts done to prevent harm to P should be proportionate to (a) the likelihood of P's suffering harm, and (b) the seriousness of that harm. The Official Solicitor notes there is a general recognition of the benefits of the Covid-19 vaccination; however, the complexity in AD's case is his resistance to medical intervention and the distress it could cause him.

The Official Solicitor accepts that the proposed use of sedative medication is the least restrictive means why which AD may permit the vaccination. The Official Solicitor does not consider that use of physical restraint would be proportionate and invites the court to make directions making clear that the use of physical restraint is not authorised.

The Covid-19 pandemic has caused untold grief, distress and worry, for so many families and individuals in many different situations. I entirely understand why there is genuine and legitimate concern from some, about the administering of a new vaccine to combat a new virus. People legitimately and in good faith, raise questions about its efficacy and possible side effects. I approach Mrs. C's concerns with profound respect and deep compassion. I accept that she genuinely holds these concerns and is acting out of what she considers, to be the best interests of her child.

Ms. Rickard submits to the court that under s.4(7) of the MCA, AC's views must be taken into account when determining AD's best interests, but they are not determinative.

This court reminds itself of the dicta, per Hayden J. in SD (cited above), at paragraph 26: "strongly held views by well-meaning and concerned family members should be taken into account but never permitted to prevail nor allowed to create avoidable delay. To do so would be to expose the vulnerable to the levels of risk I have identified, in the face of what remains an insidious and highly dangerous pandemic virus".

Similarly, AD's opposition to healthcare interventions must be taken into account, in that the administration of the vaccine will be against his wishes and feelings: but his wishes and feelings are not determinative. These factors must be weighed in the balance, with all the other evidence about the risks to AD of contracting Covid-19 versus the risks to him of carrying out the vaccination in accordance with the proposed Care Plan.

I have to look at the professional evidence and the best guidance available to the court at the current time, in the best interests of AD. I have been very impressed with the care that the professional team working with AD has taken to consider his particular case and his need for the vaccination. When the balance of evidence from all those interested in AD's welfare is considered, in my judgment it is overwhelmingly in favour of him receiving the vaccine.

I am satisfied that on balance, it is in AD's best interests to be administered the Astra-Zeneca two shot vaccine. I am further impressed by the careful thought that has gone into how that vaccine can be administered without causing AD distress. I note the careful consideration of this plan by the Official Solicitor on behalf of AD. In my judgment, it is in AD's best interests for the vaccine to be administered in accordance with the care plan which does not involve the use of force.

In the event it is not possible to administer the vaccination to AD successfully and a more restrictive care plan is proposed, the matter should be brought before the court for further directions.

Should the court approve administration of the booster at this hearing.

On behalf of the CCG, Ms. Rickard submitted that the booster would only be administered if the plan in respect of the two shots of the A-Z vaccine went well and there were no serious adverse reactions. The team caring for AD would look at all of the information available and consider what is in AD's best interests at the appropriate time. Allowing this order now would save on a further application.

However, the application in respect of the booster jab is opposed on behalf of AD.

Mr. Fernando submits,

"It is difficult for the Official Solicitor to take a position on this when AD's response to the first vaccination is not known and the position regarding revaccination has not yet been determined. Further, the discussion for the booster is not part of current government policy or guidance and AD should be afforded the opportunity to consider it at the appropriate time as would be afforded if he had been assessed to have capacity."

Mrs. C was opposed to the booster, given her strenuous opposition to the two shot vaccine.

On this issue I respectfully agree with the submissions on behalf of the Official Solicitor. The guidance and medical advice may have changed by the time any booster may be required. Any individual would wish to consider whether to have the booster at the time that it is available and those representing AD should be afforded the same opportunity. I respectfully accept the submission of the Official Solicitor that it would represent "overreach" to sanction administration of the booster at this time.

My sincere thanks to Ms. Rickard and Mr. Fernando for their excellent written and oral submissions.

My thanks to all the professionals who have considered this case so carefully, in the interests of AD.

My thanks to Mrs. C who put her case clearly. I hope she will be able to accept the judgment of this court.