Consent and the State: Revisiting 2021 (UZM)

The "vaccination" of UZM; recommended by a senior manager at a disability services provider; "consented" to by the State; administered under sedation because UZM objected.

On 9 September 2021, the NSW Civil and Administrative Tribunal (NCAT), “consented” to the COVID-19 “vaccination” of UZM, even though the Tribunal member acknowledged, UZM objected to the “medical treatment”.

So great was UZM’s objection to “vaccination” that it required sedation with Diazepam for it to be completed.

So, why did the Tribunal authorise the restraint, sedation and compulsory “vaccination” of UZM?

The facts of the case

UZM was a 39-year-old man who lived in a group home with two others in Sydney’s inner west.

The Tribunal member wrote, rather ambiguously, in her findings that UZM was:

“. . . reported to have been diagnosed with autism spectrum disorder.”¹ [emphasis added]

UZM was also afraid of needles.

So afraid, in fact, that there had been four unsuccessful attempts to COVID-19 “vaccinate” him by a senior manager (“YBE”) at UZM’s disability service provider.

UZM had clearly objected; a fact even acknowledged in the Tribunal member’s findings.

“Mr. Z”, UZM’s legal Guardian (and father), however, had “consented” for his son to be COVID-19 “vaccinated”, but these attempts, as outlined, were unsuccessful, prompting YBE to apply to NCAT to have the State “consent” for the “vaccination” of UZM.

What issues did the Tribunal have to consider?

The starting point was how to disregard UZM’s clear objection to being “vaccinated”.

UZM’s objections mattered, because under The Guardianship Act 1987 (NSW) (The Act), a person’s refusal must be taken seriously unless strict conditions are met for treating it as ineffective. The Act expressly recognises and protects the objection of a person, even if that person lacks the capacity to consent.

Under The Act, an objection can only be “disregarded” if the “patient” has little or no understanding of the proposed medical treatment and if any distress the treatment causes would be short-lived and reasonably manageable and both limbs must have been met for UZM’s objection to have been lawfully disregarded.²

In UZM’s case, although he was alleged to have had little or no understanding of the proposed treatment, the proposed treatment had clearly caused him significant distress on four separate occasions and UZM’s objection was, therefore, recognised by the Tribunal:

“[A]fter four previous attempts at vaccination, the Tribunal was not satisfied that [UZM’s] distress is likely to be reasonably tolerable and transitory.”³

UZM’s objection, therefore, was not disregarded by the Tribunal.

Yet, in a striking departure from the logic of its own findings, the Tribunal member still “consented” for a full course of “vaccination” to ensure UZM was not deprived of necessary medical treatment because he lacked the capacity to consent.

To carry out the “vaccination” an Emla patch was used to desensitise UZM’s skin, a butterfly cannula was inserted into UZM’s arm to intravenously sedate him with Diazepam, and he was injected with a COVID-19 “vaccine”.

It was not stated, but it is presumed that this procedure would have been performed twice so that UZM would have received his “full course of vaccination with the Pfizer or AstraZeneca COVID-19 vaccine”.⁴

In sum, the compulsory “vaccination” of UZM consisted of six total intrusions into his bodily integrity.

What issues did the Tribunal fail to properly consider?

In such a brief exposition, the Tribunal member failed to properly consider several significant factors in her findings.

First, the Tribunal member did not classify the proposed medical treatment as “major” or “minor”. In failing to do so, the Tribunal member never entered the correct legal pathway, leaving every subsequent step based on an unstated assumption rather than the process the Act requires.

Under The Guardianship Regulation 2016 (NSW), the proposed “vaccination” of UZM was clearly a “major medical treatment”, because it was:

(b) . . . treatment that involves the administration of a drug of addiction,

(c) . . . treatment that involves the administration of a general anaesthetic or other sedation, but not treatment involving:
(i) sedation used to facilitate the management of fractured or dislocated limbs, or
(ii) sedation used to facilitate the insertion of an endoscope into a patient’s body for diagnostic purposes unless the endoscope is inserted through a breach or incision in the skin or a mucous membrane [emphases added]

and;

(f) . . . treatment that involves a substantial risk to the patient (that is, a risk that amounts to more than a mere possibility) of . . .

(ix) a high level of pain or stress⁵ [emphases added]

In contrast, a “minor” medical treatment is defined in The Act as:

[T]reatment that is not special treatment, major treatment or treatment in the course of a clinical trial.⁶ [emphasis added]

On these grounds, it should have been obvious that the proposed treatment — COVID-19 “vaccination” via chemical restraint — constituted “major medical treatment”:

• To “vaccinate” UZM, a drug of addiction (Diazepam) had to be administered;

• Sedation was required to “vaccinate” UZM and it was not for the management of a fractured/dislocated limb, nor for diagnostic purposes;

• Attempts at “vaccinating” UZM had also caused him a high level of pain and stress; and,

• COVID-19 “vaccination” was, at the time, part of the “the world’s largest clinical trial”, and therefore, UZM’s “vaccination” was not “minor treatment” because it was “treatment in the course of the clinical trial”.

The Tribunal member recited the rules for classifying treatment in her reasons, but when it came to the findings she never actually made the classification that the proposed treatment was “major” or “minor”. Instead, she simply proceeded as if it were minor, because that is the only way the objection test could have even been considered.

The Tribunal member never expressly analysed whether the sedation, repeated failed attempts, the need for a cannula, and the level of distress placed the procedure into the “high level of pain or stress” category that defines major treatment.

The second important consideration overlooked by the Tribunal member was that UZM was not as afraid of needles as he was made out to be.

Although UZM reportedly had a fear of needles, he had received his influenza vaccination from his general practitioner.⁷

It is likely that UZM consented to this procedure because there was no suggestion that he objected.

He didn’t have to be sedated.

No reports of distress or pain.

It worked on the first occasion.

No repeated attempts.

No application to the Tribunal for “consent”.

One reason cited by the Tribunal member for the successful influenza vaccination was that it was completed at the familiar surroundings of his general practitioner’s practice and, by contrast, COVID-19 “‘[v]accination’ sites were unfamiliar to [UZM] and there was insufficient time to desensitise UZM to attend those new surroundings.”⁸

What was the rush?

Nothing in the findings explains why there was any urgency or why “insufficient time” was available to desensitise UZM to new “vaccination” sites. At the time, mostly all general practitioners would have, in due course, been licensed to administer COVID-19 “vaccines” (repeatedly) and finding a site would have been possible.

That phrase in the findings suggesting some urgency was required was given without context; without evidence; and without any explanation of why time could not be taken; or why desensitisation was not possible; or why the process needed to occur immediately.

So, on the evidence before the Tribunal, UZM’s fear of needles could have been managed without intrusions into his bodily integrity involving chemical restraint.

The Tribunal member simply reduced UZM’s refusal of COVID-19 “vaccination” to a fear of needles, which does not sit comfortably with the evidence that UZM had received his influenza needles previously.

We do not know how the Tribunal member reconciled the idea that a person who managed one vaccination in a familiar context was incapable of expressing a genuine objection to another.

Imagine, perhaps, that UZM was capable of understanding what the influenza vaccination entailed and, for this treatment, he provided valid consent. Similarly, imagine that UZM could have been capable of understanding the proposed COVID-19 “vaccination” and he validly objected.

By the logic of the findings, consent was only respected as valid and informed when UZM accepted a medical treatment. When UZM objected to a different medical treatment, it was disregarded because he could not consent. UZM was, by this reasoning, so haplessly handicapped that he could not and did not understand the life-saving nature of COVID-19 “vaccination”.

UZM’s objection was reduced by the Tribunal member to an infantile “fear of needles”. Even if we accept that UZM was simply afraid of needles (not of COVID-19 “vaccination), his refusal could not be separated from the way this treatment would have to be performed. He objected while fully conscious, and the only way the procedure could succeed was by sedating him to the point where he could no longer resist or express that objection.

Although UZM had no expressive speech, he was clearly able to consent and object to medical treatment, as the evidence clearly demonstrated.

If the law allowed sedation to vitiate a person’s refusal, any objection could be swept aside simply by rendering the objector unconscious.

Conclusion

The findings were strikingly brief, consisting of only 26 paragraphs, most of which comprised the restatement of facts of the case or recitations of the relevant legislation.

For such a serious intrusion on UZM’s bodily integrity, involving chemical restraints, and to have this process completed twice, the Tribunal member provided woefully insufficient reasoning and analysis justifying the decision, which raises serious questions about the legality of the forced “vaccination” of a person — not “patient” — against his wishes and his repeated objections.

In the end, “consent” was given by everyone but the person whose body was being acted upon.

The final barrier to his refusal was removed not by law, but by sedation.

Reading this decision now, one cannot help but shudder.

In 2021, in a matter involving sedation, restraint and repeated failed attempts, no expert evidence was called.

The necessity of the treatment was simply assumed.

Throughout the reasons, UZM is referred to as a “patient”, placed within a medical paradigm in which his rights as a human being disappeared and decisions were made for him as though his own will were incidental.

We have no recourse. As non-parties, we cannot appeal on UZM’s behalf.

No one knows who he is and nothing can be undone.

The most that can be done is to keep his story on the record.

Cases like this do not vanish when ignored, and they will not be the last of their kind.

Thanks for reading.

1. UZM [2021] NSWCATGD 15, at [3]

2. Guardianship Act 1987 (NSW), Section 46(4)(a)–(b)

3. UZM [2021] NSWCATGD 15, at [23]

4. UZM [2021] NSWCATGD 15, at [25]

5. Guardianship Regulation 2016 (NSW), Section 10

6. Guardianship Act 1987 (NSW), Section 33

7. UZM [2021] NSWCATGD 15, at [18]

8. UZM [2021] NSWCATGD 15, at [19]