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Social Welfare Update: Capacity and best interests in relation to Covid-19 Vaccination

Friday 26 February 2021

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Mrs E was aged 80 and lived in a care home. She had diagnoses of dementia and schizophrenia. 

Proceedings were ongoing in the Court of Protection concerning Mrs E’s care and residence, during which Mrs E had been found to lack capacity to conduct litigation or make decisions about these matters.  

It was against this background that Mrs E was offered a Covid-19 vaccine. Mrs E’s son, W, objected to Mrs E receiving it on the basis that he was sceptical about the vaccine’s efficacy and safety.

Hayden J first considered Mrs E’s capacity to decide whether to receive the vaccine. He considered a video call that had taken place between Mrs E and a GP where Mrs E was unable to recall that there was an illness called coronavirus. When Mrs E was asked if she wanted the vaccine, Mrs E replied “Whatever is best for me”. It was the conclusion of the GP that Mrs E did not have capacity to determine whether or not she should receive the vaccine.

Hayden J found that this informal assessment was sufficiently rigorous to comply with Ss 2 and 3 MCA 2005. He agreed that Mrs E lacked capacity to decide whether or not to receive the vaccine. 

In relation to Mrs E’s best interests, Hayden J considered the factors under s 4(6) MCA 2005. He noted that Mrs E had received vaccinations in the past, prior to her diagnosis of dementia. He placed weight on the fact that Mrs E had told the GP that she wanted “whatever is best for me”, noting that her autonomy had not been eclipsed by her dementia and that this statement was in keeping with her earlier approach to similar issues.

In relation to Mrs E’s son, W, Hayden J observed that his views, while worthy of respect, were not reflective of his mother’s character. 

Hayden J noted that Mrs E had many characteristics which made her vulnerable to becoming seriously ill with Covid-19, and furthermore that her care home had suffered a Covid-19 outbreak. He observed that Mrs E lived in a country with one of the highest Covid-19 death rates per capita in the world. He noted that the risk matrix was not delicately balanced and that the risk to Mrs E’s life from contracting Covid-19 was much greater than the unidentified possibility of an adverse reaction to the vaccine. He concluded that it was in Mrs E’s best interests to receive the vaccine. 

Comment

  • It is noteworthy that an informal, virtual assessment was considered sufficiently rigorous in this case to comply with Ss 2 and 3 MCA 2005.
  • In placing weight on Mrs E’s non-capacitous statement that she wanted ‘whatever is best for me’ the court respected her autonomy, whilst assessing her as lacking capacity to make the decision. It was important that this statement chimed with the approach she had taken earlier in life. 
  • It will be interesting to see how the courts approach cases where P has previously expressed hesitation about vaccines. 
  • There have been a number of cases in the family court concerning whether or not a given vaccination is in a child’s best interests, including the recent case Re H (A Child) (Parental Responsibility: Vaccination) [2020] EWCA Civ 664 which includes a helpful overview.
  • Self-evidently, children differ from non-capacitous adults in that there can never be an evaluation of their attitude to similar issues in the past, and therefore the family court is engaged in a more straightforward evaluation of the child’s welfare, taking into account the views of the parents and the relevant expert evidence. 

See now also Hayden J's decision in SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14.

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