judge's gavel
Tom' was born with chromosomal abnormalities. He is non-verbal and has never achieved a mental age beyond 18 months, but with his mother's love and care he has made it to 24 years old.

Physically, however, Tom is fit and survived Covid with a sniffle. Despite this, a Governmental health authority, an Integrated Care Board (ICB), has for two years continued to spend a small fortune on lawyers in the Court of Protection demanding, against his mother's wishes that Tom be given the COVID-19 vaccine.

What is going on?

The Court of Protection is a creation of the Mental Capacity Act 2005, an Act made with the intention of giving a voice to the vulnerable. It is a court where life and death decisions of medical treatment can be made and it is inhabited by a select group of judges and lawyers appointed by the court to advocate on behalf of the vulnerable individual.

Something is awry. There is widespread concern that in this little known or understood court, decisions are reflecting the influence of politics and facilitating Government interference in the private lives of families where Government and courts should have no business.

The fundamental issue is that while the court declares it will give significant weight to parents' views, it is of the immovable view that once a child reaches 18 he or she becomes an 'adult' and has a right to autonomous decision making. To facilitate that autonomy, the judge will decide what medical treatment should be given. This will be not just where grief or extreme distress may cloud rational decision making, but for all medical decisions disputed before the Court.

It is the court, however, that is irrational. When a mother has made every decision in her son's life since birth, the gift of autonomy for his 18th birthday is a bizarre and cruel concept of pure fiction.

Tom's appointed lawyers have submitted that the court's September 2022 order, declaring it was in Tom's best interests to be vaccinated ''as soon as possible", must still be complied with and his mother threatened with jail if she obstructs. They argue that treatment must be whatever is recommended in the Green Book, Government guidance for health professionals. And they do so despite a specialist in Tom's condition warning of particular risks to him because of his chromosomal abnormality.

Your read that right. Tom's court-appointed lawyers argue that the reasonable treatment decisions of his mother and the warning of a specialist report must be dismissed and take second place to Government guidance, that Tom must risk the COVID-19 vaccine. Because Covid. Because safe and effective.

That may be their view, but they can no better ascertain Tom's wishes than anyone. Their job is to represent their client's interests, not the court's, not anyone else's, and not to insist that warnings of immediate harm be dismissed.

Tom's lawyers also back the learned judge's out of hand rejection (and description as "regressive") of any argument that the family should continue to make health decisions for Tom after he reaches 18. As was put rhetorically to Sarah's barrister: "There is no power vested in a parent of an adult child to take decisions about them. Would you like your father to be taking decisions about you?" If being progressive means pretending the court can gift autonomy to Tom, then we are off to hell in a hand cart.

Despite such remarks, at the latest hearing it was some relief for Tom's mother that the judge decided that "the Covid landscape has changed" and there was now time to examine the specialist's report.

Superfluous to that decision, having previously and pejoratively suggested Tom's mother may be an 'anti-vaxxer', the judge also suggested that the GP (who had seen the specialist report) should have referred herself to the General Medical Council for her refusal to administer the COVID-19 vaccine to her patient and should have removed herself as his GP.

With respect, such remarks against this GP were unnecessary and illustrate very real pressure and threat from the courts to the independence and ethical practices of doctors. Someone took it upon himself to report these remarks to the GP's own supervising ICB. She is now the subject of an investigation, facing the significant impact of personal strain of her professional career and livelihood being put at risk.

Even though it is extremely doubtful that any judge has the power to order a doctor to administer treatment contrary to his or her clinical assessment (as opposed to refrain from treatment), and even though this GP acted on a report that was not available to the court in 2022 when the court's declaration was made, the process is the punishment.

We remain in sight of Thalidomide injuries, of the 2009 Pandemrix vaccine causing narcolepsy in children, and of the NHS allowing AIDS-infected blood to be used to treat patients. Prime Ministers have had to apologise for these. In the current Scottish Covid inquiry witnesses are describing the scandal of ascribing deaths to Covid that were due to lockdown policy and end of life protocols promoted above clinical assessment.

With what hubris do the courts think they or the Government know better than the loving parent?

They have no reason, nor permission, to be complacent that in relation to the COVID-19 vaccines, Government information might not be as flawed, even dishonest, as it has been for other pharmaceutical scandals.

The courts cannot be permitted to become de facto enforcers of Government policy. Families have rights as well as responsibilities.

Tom's case returns to Court on July 4th and 5th. The judge has warned an order for Tom's vaccination may again be made.

This is an important case for the rights of all families. Represented by leading human rights barrister Paul Diamond, the crowd fund to pay for her legal fees is here. Please donate what you can afford. In any event, please share Tom's story widely. The principles at stake are universal.
Stephen Jackson is a Solicitor and Principal at Jackson Osborne, solicitors for Tom's mother.