Gráinne Mellon acts in first Court of Protection case concerning Covid-19 Vaccination and the Mental Capacity Act

Thursday 28 January 2021

Gráinne Mellon of the Garden Court Chambers Court of Protection Team was instructed on behalf of Mrs E, by her Accredited Legal Representative, Keith Clarke of Burke Niazi Solicitors.

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In E (Vaccine) [2021] EWCOP 7, Mr Justice Hayden has given the first reported judgment on capacity and best interests in relation to the Covid- 19 vaccine.

The case concerned Mrs E, an 80 year old woman, with dementia and schizophrenia who resided in a care home. She was offered the Covid-19 vaccination but her son objected to her having it. The case was considered urgent in light of the fact that a number of residents in the care home had contracted Covid-19.

Gráinne acted for Mrs E, instructed by her accredited legal representative, Keith Clarke of Burke Niazi Solicitors. Mr Clarke referred the issue to the Court of Protection by way of an application in ongoing section 21A proceedings. The case was urgently transferred to High Court for consideration of the vaccination issues.

The Court concluded that Mrs E lacked capacity to decide whether to have the vaccination and further that it was overwhelmingly in her best interests to have the vaccination.

On capacity- the Court indicated that fairly informal and brief assessments are likely to be sufficient for the purposes of assessing whether an individual has capacity to consent to receive the vaccine. Mr. Justice Hayden stated at [11] that “evaluating capacity on this single and entirely fact specific issue is unlikely to be a complex of overly sophisticated process when undertaken, for example, by experienced GPs and with the assistance of family members or care staff who know P well.”

On best interests- the court took into account, pursuant to section 4(6) MCA Mrs E’s past wishes and feelings and the beliefs and values that would be likely to influence her decision if she had capacity. In this respect, the court placed particular weight on the fact that in the past, Mrs E had willingly received vaccinations for flu and for swine flu. The court placed particular weight on Mrs. E’s own views and temperament while noting and taking into account the different views of her son. 

The court noted the decision was not a delicately balanced one and concluded that at [19] as follows:

“It is a fact that Mrs E lives in a country which has one of the highest death rates per capita, due to Covid-19, in the world. By virtue of her vulnerabilities, the prospects for her if she contracts the virus are not propitious; it is a risk of death, and it is required to be confronted as such. The vaccination reduces that risk dramatically and I have no hesitation in concluding that it is in her best interests to receive it.”

The case is likely to be of assistance to healthcare professionals responsible for assessing capacity and administering Covid-19 vaccinations in care homes, hospitals and in the community in the coming months. It reiterates the importance of an individual approach to best interests, taking into account what the individual’s position on the vaccination would have been likely to be had they had capacity to make the decision.

Gráinne Mellon is a member of the Public Law, Community Care, Court of Protection and Immigration law teams at Garden Court Chambers. She sits on a part-time basis as a Judge in the Mental Health Tribunal. 

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