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The Court of Protection and the vaccine: to administer or not to administer

It has recently been reported that the UK has given more than 75% of the country’s adult population their first dose of the Covid-19 vaccine[1].

In the midst of the vaccine rollout, the Court of Protection has received many requests on behalf of those individuals who lack the capacity to make this important healthcare decision by themselves, that they should be given the vaccine.

In January 2021 Honourable Mr Justice Hayden in Re E (Vaccine): LB Hammersmith and Fulham v W [2021][2] ruled that Mrs E, a dementia and schizophrenia sufferer in her 80s, should be given the vaccine, despite her son’s objections. However, in April 2021 Lord Hayden ruled that another mentally incapacitated woman, SS, who was also in her 80s and suffered from dementia should not be given the vaccine (SS v London Borough of Richmond upon Thames [2021][3]).

Both cases were heard by the same judge, both individuals were sufferers of dementia and both were residents of care homes. So how does the same judge, with similar facts come to opposite decisions?

In both cases, the question was not whether the individuals lacked mental capacity, this was already accepted, but rather whether it was in the individual’s best interests to receive the vaccine.

Criteria for ‘best interests’

The criteria for determining the best interests of an incapacitated person are set out in s4 of the Mental Capacity Act 2005. The rule most relevant to the facts of the two cases is that the person making the decision

“…must consider, so far as is reasonably ascertainable—(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.[4]

The Individual’s views prior to becoming incapacitated

In both of his judgements Hayden J concluded that analysing the individual’s previous views and wishes pre-incapacity would play a factor in deciding whether an incapacitated person should be given the vaccine.

Mrs E had willingly received the influenza and swine flu vaccines when she had capacity. Hayden J highlighted that it was also relevant that Mrs E in the past chose to be vaccinated in line with public health advice.

However, there is no record of SS ever receiving any kind of vaccination and there were records of SS on multiple occasions since 1997 specifically declining seasonal influenza and pneumonia jabs when offered.

Risk to the individual

The judge also looked at the risk to the individuals of not being vaccinated.

The judge concluded that Mrs E had the following characteristics which increased her vulnerability to becoming ill and/or dying from Covid-19:

  1. She was in her eighties
  2. She was living in a care home
  3. The care home had confirmed recent positive cases of Covid-19
  4. She was diagnosed with Type II diabetes
  5. She lacked the capacity to understand the nature or transmission of Covid-19 and was inevitably challenged, as so many living with dementia in care homes are, by the rigours of compliance with social distancing restrictions

Although points 1, 2 and 5 also applied to SS, when judgement in SS’s case was being passed, there was no report of a confirmed positive case of Covid-19 in SS’s care home.

It is also noteworthy that the UK was in a better position when SS’s case was heard. When Mrs E’s case was decided in the Court of Protection on 20 January 2021, daily cases were 35,092[5] and 5,383,103[6] adults in the UK had received their first dose of the vaccine. By contrast, when SS’s case was decided on 30 April 2021 daily cases had reduced to 1,699[7] and 34,362,205[8] adults in the UK had received their first dose of the vaccine. The judge notes that by the time SS’s case came to court, Covid-19 was reclassified as an ‘endemic’ and not a ‘pandemic’ in the UK.

Additionally in the case of SS, the judge observed that 77 out of 100 members of staff had been vaccinated and so the greatest risk to SS was from unvaccinated members of staff living in the community away from the care home. The care home combated this with the requirement of two lateral flow tests and one PCR test per week for each staff member.

Therefore the risk of SS contracting the virus and coming to harm was significantly lower than Mrs E’s due to the combination of the contemporaneous country wide measures and care home measures.

Looking at the whole picture

The judge concluded that if he confined SS’s case to wholly health-related issues, he would conclude that the vaccine was in the best interest of SS. However he noted that ‘A determination of “best interests” in this context… is… not to be confined to the epidemiological; it requires evaluating welfare in the broader sense…it requires us to put ourselves in the place of the individual concerned.’

When referring to welfare in a broader sense the judge took into account not only the previous actions of the individual but also the distress caused to the individual by the vaccination being administered. In the case of SS it was likely that sedation and restraint would be needed to administer the vaccine, thereby causing some harm to SS. The judge also explained that there was a likelihood of the trust established between the individual and her carers being broken. After arriving at the care home, SS had initially struggled to establish trust with the care workers but with time and persistence she was more cooperative. Therefore while the vaccination was being administered forcefully, she might look to the carers for help and the act of them not helping her in her time of need might seriously jeopardise the trust she had put in her carers.

Interestingly the judge decided against Mrs E’s son’s wishes. He did not want his mother vaccinated at the time due to fear and doubts surrounding the speed of the rollout and potential unknown side effects. In SS’s case, the judge also decided against SS’s closest relative, a cousin, who said that SS’s father would have probably wanted her to have the vaccine. Thus it is apparent that the Court is likely to prioritise the previous views and present circumstances of the individuals themselves over the viewpoint of those around them.

In summary, when deciding whether an incapacitated individual should have the Covid-19 vaccine, the Court of Protection will look at an individual’s past views and actions, overall present health risks and welfare related risks to the individual to determine whether the vaccine is in their best interests. From these two cases, heard just 3 months apart, it is clear that the very specific circumstances of the individual is put in the centre of the discussion and when making the same decision, the Court of Protection and the judges themselves can come to opposing conclusions.

If you have any questions, or would like to discuss this further, we would be happy to advise on or help with any aspect of raised in this article, please speak to your usual contact at Maurice Turnor Gardner LLP or email us at info@mtgllp.com.

These notes do not contain or constitute legal advice, and no reliance should be placed on them. 

[4] S4(6) Mental Capacity Act 2005

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