Saturday, May 18, 2024
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State v family – who decides what’s best for your child?


TODAY, this article may not be about you and your family, but you never know what is around the corner. The story below should act as a warning to anyone who might lose their mental capacity via injury, dementia or any other affliction. And if you currently care for someone who lives with compromised mental capacity, it is also worth taking note.

This is a tale about our courts, wearing the boots of government, marching into your home to force medical treatment, whether long established or experimental, on members of family members ‘for their safety’. It is about civil liberty being dismantled on the altar of Covid. It is about the creation of a court standing outside the constitutional protection for the UK citizens of common law.

These are not the wild predictions of a dystopian future, but what is happening in the UK now. 

Let me introduce you to Tom (not his real name, and his mother cannot speak openly herself, due to an anonymity order imposed by the court.)

At 22, Tom is physically an adult. However, he is mentally a child, with the capacity of an 18-month-old. He cannot make decisions for himself. Tom lives with his mother, who has cared devotedly for him since he was born with an abnormality of the 13th chromosome, a condition known as Partial Trisomy 13 or ‘T13’. He lives a happy life and mum is rewarded with his love.

So effective is her care that assistance from the state is minimal. Overlooked by GP and social services, no one saw the need to visit or to list Tom for priority assistance during lockdowns in response to Covid.  Nevertheless, later the head doctor at the local GP surgery (who has never met Tom) decided that Tom needed to be vaccinated and that the health concerns expressed by his mother were irrelevant. This led to Tom’s vaccination status being reported to the local authority which applied to the court for an order that he be given the Covid-19 vaccine.

To be clear, this is a case in which there is no need for the court to step in to prevent neglect or cruelty. Only in such a situation is there need in common law and statute for the court to intervene. Here it is quite the opposite. Ordinarily, Tom’s circumstances fit the expectation of the public and of the courts that parents are best placed to consider what is in the best interests of their children.

You, like me, may be of the view that the court has no place interfering with this family unit. The court process is complicated and exhausting for any parent, and legal representation is costly. In the large majority of cases, the court overrules the parents’ wishes, which can feel brutal. 

However, interfere they do. As is usual in cases like these, Tom’s case has been dealt with in the Court of Protection which ostensibly provides additional protection to vulnerable children and adults. 

During Tom’s case lawyers for the local authority zealously asserted the life-saving effect of the Covid-19 vaccines and negligible risks. His mother, however, had read widely to inform herself about the benefits and risks of mRNA injections. She believed, as large numbers of doctors have written and in line with decades of understanding in immunology textbooks, that Tom’s prior Covid infection indicated both the presence of a high degree of immunity and that the risk of him suffering a severe reaction to future variants would be next to nil.  Importantly, her views were acknowledged to be reasonable. So far so good.

However, there is now an insidious change to the legal landscape. The courts are interpreting the Mental Capacity Act 2005 to intend that families should have no responsibility or rights to determine the best interests for the health of their children once they reach age 18, even if in all other respects they necessarily remain a child. The reasoning given is that when anyone reaches age 18, they become an adult even if they do not have full mental capacity. Furthermore, in the interests of equality and ensuring their dignity, they are to be afforded the same rights as any healthy adult; accordingly, they are to be afforded the power of autonomous decision-making. It matters not that they will never be able to make decisions for themselves. What matters is that Tom is accorded the status of being something he is not – an adult with mental capacity. To achieve that fictitious status, power to decide what is in Tom’s best interests is taken from the family and given to the court. 

To make its decision, the court imagined what the fictitious Tom, a Tom with mental capacity, would decide for himself. The process is intended to give Tom a voice in the proceedings by ‘substitutive judgment’.

In practice, it means the court gives itself almost free rein to imagine reasons for Tom to want exactly the medical treatment (or non-treatment) the court would think best.

In Tom’s case, it was declared that he would wish to carry out the ‘altruistic’ act of having the Covid vaccine. It was imagined that Tom would, as a responsible adult, want to ensure his welfare and reduce burden on the NHS for the good of others and that this altruism would override any consideration that he might have for mother’s wishes.

No evidence was offered by which to project such altruism on to Tom. It is disregarded that such altruistic motive is contrary to the principle of medical ethics which dictates that treatment for an individual may not be justified as for the good of the community.

The court went on to reason that if Tom does not physically resist the injection, this will be evidence that he wants to receive it. Conversely, if he resists, it will be evidence that he does not. It is difficult to comprehend how Tom’s reaction to a syringe would indicate his understanding of its contents.  

As for the likelihood of a Tom with capacity heeding his mother’s concerns, that is taken into consideration but there is no evidence or measurement as to how this is done.  The outcome is that in attempt to ‘give the vulnerable a voice’ the court silences the mother and adopts the loudest voice itself. But it’s worse than that, because the court’s voice has become that of the State.

As is usual, the court considered the medical opinions of the treating doctors. Despite finding the doctors could not answer many of the questions put to them and that their opinions were based not on expertise regarding the mRNA treatment but were, fundamentally, grounded on following Chapter 14A of the Green Book, the NHS guidance published by UKHSA (a body under control of the Secretary of State for Health and Social Security), the court nevertheless proceeded to order injection. By this short step, unchallengeable state guidance becomes enforceable law.

The net lesson from Tom’s case, is this: the courts are treating state-sponsored guidance as sufficient reason to order medical intervention, will do so without further evidence of need, and will do so against the wishes of the family.

I will record here that the court’s opinion has been expressed in strong terms. 

Further and somewhat unusually, rather than leaving parties to return to court should a subsequent issue over enforcement of its orders arise, the judge later contacted the parties and Court of Appeal to inquire why Tom had not been already vaccinated.

At time of writing, the Court of Appeal has refused to consider Tom’s case on the basis that it has no jurisdiction to do so. Given that the appeal complained that the Court of Protection had breached principles of common law and unlawfully interfered with the rights and responsibilities of the family, worrying and constitutionally important implications arise.

Is it right and is it permissible that the Court of Protection, a court created by Act of Parliament and whose rules could be changed at whim of this or any future Parliament, should be able to act breach common law without scrutiny?

In any event, are our vulnerable children really to be viewed as no longer part of the family, expelled from its protection, at an arbitrary date determined by their 18th birthday? What is the meaning of ‘family’? What power, if any, does the state have to decide? Is the Englishman’s home no longer a castle for his family?

These developments are occurring while debate of the Covid-19 injections is silenced in the media. But this debate is far wider than Covid and it is vital that the issues are discussed widely and in public.

Article 23 of the United Nations International Covenant on Civil and Political Rights of 1966 reads: ‘The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.’ 

In a 2016 case, the UK Supreme Court recognised that: ‘There is an inextricable link between the protection of the family and the protection of fundamental freedoms in liberal democracies.’

Has fear of Covid made us forget what is most important?

The Court of Protection had appointed an Accredited Legal Representative (ALR) independently to represent Tom in the proceedings. Unfortunately, the ALR had not thought to contact a medical expert on the effect of the vaccine on Trisomy individuals. A specialist in Trisomy-13 has now provided a statement to the effect that the mRNA treatments pose particular and greater risk to individuals with that condition than would Covid infection.

The arrival of new evidence is a common legal situation and Tom’s mother is considering presenting this evidence directly to the High Court. Here, if necessary, route to the Court of Appeal would not be blocked for lack of jurisdiction. Whatever happens, there will be considerable legal costs to be incurred.

Tom’s mother has a crowdfunding page where anyone who is able to support her and Tom, and to protect the family unit against intrusion of the state, can make whatever donation they can afford. 

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Stephen Jackson
Stephen Jackson
Stephen Jackson of Jackson Osborne is solicitor to Tom’s mother.

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