Court of Protection accepts that Covid-19 booster vaccine would represent "overreach" to sanction at this time

The latest judgment concerning Covid-19 vaccination in the Court of Protection has been published.  

The application concerned AD, a man in his thirties, living in supported living with a 24/7 package of care commissioned by a local authority rather than the applicant CCG.  AD has a diagnoses of moderate LD, Down’s Syndrome and Autism.  He is clinically overweight and of BAME heritage.  These characteristics mean AD is ‘clinically extremely vulnerable’ to Covid-19. 

The CCG responsible for arranging primary care services provided to AD brought the application, seeking orders that it was lawful and in AD’s best interests to receive two doses of the AstraZeneca vaccine and, further, any booster that might become available.  The application as it concerned the two doses of the vaccine was supported by the Official Solicitor.  The application was necessary because P’s mother was strenuously opposed to vaccination because of concerns about its effects on AD’s psychological wellbeing and because of her mistrust of the vaccine and the need for it more generally.   Furthermore, although P had been deemed to lack capacity in respect of the issue, he was noted to have a history of refusing and resisting medical interventions and that, during attempts to ascertain his wishes and feelings via an easy read social story concerning Covid-19 and the vaccine, he ‘clearly objected to the injection and would shake his head to verbalise “no”’.    

The potential for the vaccination to cause P significant distress was known to the CCG and plans to mitigate this were provided for in a vaccination care plan filed by the CCG as part of the application.  The plan did not provide for the use of any force to administer the vaccine.

Upon considering the evidence before it, the court declared that AD lacks capacity to make decisions in respect of the administration of the Covid 19 vaccination and that it is lawful for AD to be given two doses of the Astra- Zeneca Covid 19 vaccine in accordance with the care plan (no use of force permitted).  However, the Court refused the application to allow for the administering of the booster.

In her judgment, HHJ Brown dismissed the speculative concerns raised by AD’s mother, noting Hayden J’s comments in the case of SD that, “it is not the function of the Court of Protection to provide a forum for ventilating speculative theories. The Court must make its decision in light of the credible professional evidence concerning AD, and concerning the risks and benefits specific to him.”

As regards the concerns about the effect the vaccine would have on AD’s psychological wellbeing, HHJ Brown recognised that,  "strongly held views by well-meaning and concerned family members should be taken into account but never permitted to prevail nor allowed to create avoidable delay. To do so would be to expose the vulnerable to the levels of risk I have identified, in the face of what remains an insidious and highly dangerous pandemic virus".   Similarly, whilst P’s opposition to healthcare interventions were to be taken into account, his wishes and feelings were not determinative.  These factors, like all other relevant factors, were to be weighed in the balance.  In this case, taking into account P’s increased vulnerability and detail of the care plan filed by the CCG, HHJ Brown found the balance “overwhelmingly in favour” of vaccination.

The same was not true for the booster. HHJ Brown essentially found that it would be premature to make an order in respect of the booster, giving the following rationale for her ruling:

"On this issue I respectfully agree with the submissions on behalf of the Official Solicitor. The guidance and medical advice may have changed by the time any booster may be required. Any individual would wish to consider whether to have the booster at the time that it is available and those representing AD should be afforded the same opportunity. I respectfully accept the submission of the Official Solicitor that it would represent "overreach" to sanction administration of the booster at this time."

Comment

This case also reinforces the need to bring applications concerning Covid-19 vaccination promptly.  However, as the first case to consider the issue, the key takeaway has to be that in the Court’s view, it is too soon to be making decisions about whether it is in a person’s best interests to receive the booster vaccine.

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