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Social Welfare Update: Would receipt of a Covid-19 vaccine be in a mentally incapacitated person’s best interests when other treatments are proposed by a family member?

Friday 26 February 2021

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V is in her early 70s and resides in a care home. She has Korsakoff’s syndrome.  SD, V’s daughter, sought a declaration that it would not be in V’s best interests to administer a Covid-19 vaccine to V.  The local authority argued it was in V’s best interests to receive the vaccine.

SD resided in New York and had not been appointed V’s deputy and had no power of attorney over V’s health and welfare. She was appointed as litigation friend for V.

Factual background

SD told the care home V was not to receive vaccine as she did not think vaccines had undergone rigorous enough safety testing and there was an unacceptable risk of side effects. It was not in issue that V lacked capacity to decide on vaccination. 

The issue was brought to the attention of the local authority for resolution. The judge was critical of the delay due to risk to V even though other residents and staff at the care home had been vaccinated: 

“When an issue arises as to whether a care home resident should receive the vaccination the matter should be brought before the court expeditiously if it is not capable of speedy resolution by agreement”.  

V’s GP's view was unambiguous that V should receive the vaccine. SD made the application on the 24.1.2021 aimed to stop V having the vaccination.

Decision 

SD made submissions to the effect that the present vaccines are still part of preliminary trials and would not be in V’s best interests until the vaccines were clearly safe.  SD was of the view that V would not have wanted to receive the vaccine if she had capacity and that V’s compliance with flu vaccines was due to her illness and not a true reflection of her wishes and feelings. However the judge held that this was not easy to reconcile with SD also saying that V, historically, had trusted her doctors and unquestionably followed their advice.

SD presented an amount of material in support of her application, including on trials of ivermectin, an anti-parasitic drug, purporting to show its effectiveness for treating Covid -19. The local authority argued that the evidence presented was eclipsed by the countervailing factor of Covid-19 vaccine being in V’s best interests; that all vaccines had been rigorously tested and approved with safety standards applied, and minimal risks of side effects were taken account of by V’s GP when making the recommendation; and that V remained at risk given her age, health and that she resides in a care home.

The judge held it was not the function of the Court of Protection to arbitrate medical controversy or provide a forum for speculative theories; it was his task to evaluate V’s situation in light of authorised, peer-reviewed research and public health guidelines and to set those in the context of V’s wider best interests.

Referring back to his decision in Re E (Vaccine) [2021] EWCOP 7 identifying the matrix of risk as not a delicately balanced one, he held that in all the circumstances the matrix of risk to V’s life and health if she were not to have the vaccine would be unacceptably high and that it was in V’s best interests to receive the vaccine. Whilst all other staff and residents had received the vaccine, no vaccine was 100% effective and the care home would be having greater contact with the outside world in due course.

The judge stated at [33] the principles that:

“In cases such as this, there is a strong draw towards vaccination as likely to be in the best interests of a protected party (P). However, this will not always be the case, nor even presumptively so. What it is important to emphasise here, as in so many areas of the work of the Court of Protection, is that respect for and promotion of P's autonomy and an objective evaluation of P's best interests will most effectively inform the ultimate decision. It is P's voice that requires to be heard and which should never be conflated or confused with the voices of others, including family members however unimpeachable their motivations or however eloquently their own objections are advanced.”

Comment

Whilst affirming that there is no presumption, it seems the court is identifying a trajectory towards vaccination as likely to be in the incapacitous person’s (P’s) best interests in most cases. However, we have not yet seen reported cases examining situations such as where P has expressed strong wishes and feelings against vaccination or when that has been established previously when competent, when there is an issue with validity of a Lasting Power of Attorney, potential impact on others in a care home of transmission of the virus when not vaccinated or the use of restraint to administer a vaccination.  

The courts may still be in the early stages of resolving such disputes and there are likely to be more complex situations for the courts to grapple with in due course.

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