Mental capacity, best interests decision making and Covid-19 vaccinations

In a new Court of Protection decision, the second on the issue of Covid-19 vaccinations, Mr Justice Hayden returns to the subject to provide a reminder of the importance of upholding a person’s wishes and feelings – and also, the need to bring matters to the court ‘expeditiously’, if the parties cannot agree as to whether a person should receive the vaccination.

The applicant, V's daughter (SD who lives in New York) sought an declaration that it would not be lawful or in V’s best interests to administer V with a vaccine against Covid-19, or indeed, any other vaccine, on the basis that to do so would be contrary both to her best interests and to what SD contended would be her wishes. The application was opposed by the Royal Borough of Kensington & Chelsea, as it considered that it would be in V’s best interests to receive a Covid-19 vaccine.

Interestingly, SD was unrepresented. She had not been appointed as V’s deputy and nor did she have power of attorney for V’s health and welfare at the time of the application. However, following discussion, Mr Justice Hayden appointed SD as her mother’s litigation friend.

V’s capacity and risks

In early December 2020, SD had told the care home by email that her mother was not to receive the new Covid-19 vaccine, or indeed any other vaccine, explaining that she did not think that the vaccines had undergone “sufficiently rigorous safety trials” and, in her view, there were unacceptable risks of side effects which contraindicated the taking of the vaccine.

On the day the care home was set to vaccinate its residents, V had followed the other residents into the room where the vaccinations were to be administered – at this stage V was not aware of her daughter’s request. But when told that she was not to receive the vaccine, the court was told that  “She waited for about twenty minutes in the room and then, drifted away. Her general level of functioning means that the issue has now gone from her mind and she has not returned to consider it.”. In short, there was no question in Mr Justice Hayden’s mind that V did not have the capacity to evaluate the question of receiving the vaccine for herself.

The care home provider notified the council on 12 January 2021 of the position but it wasn’t until a month later that the matter came before the court. Mr Justice Hayden had this to say:

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. This is not only a question of risk assessment, it is an obligation to protect P's autonomy. In the intervening period, Mr A told me that there was a suspected Covid-19 risk in the care home, which happily came to nothing. It is axiomatic that if Covid-19 had entered the home, V would have been at considerable risk. It is important that I record that every other resident and staff member has now been vaccinated.”

In late January, SD spoke to V’s GP who was “unambiguously clear” that he thought it was in V’s best interests to receive the vaccination. Shortly after, SD made the application with the objective of preventing V from receiving the vaccine.

Best interests and the matrix of risk

In considering V’s best interests, Mr Justice Hayden identified a matrix of risks particular to V that gave rise to a real and significant risk to both her health and well-being as follows:

“i. If V were to become infected with Covid-19, she possesses a number of characteristics which make her particularly vulnerable to severe disease or death. She is 70 years of age, she carries significant excess weight, and she has dementia resulting from her Korsakoff's syndrome;

ii. most importantly, she lives in a care home. It is an inescapable fact that in the UK, more than a quarter of the deaths due to Covid-19 have occurred within care home settings;

iii. V's particular care home, by virtue of its specialism, deals with a unique category of risk. V has been described as 'a wanderer', though far less frequently of late. In consequence of her short-term memory problems, it is impossible for V to follow the principles of social distancing and preventative hygiene measures. Evidence from Mr A demonstrates that she is very sociable, and it would not be feasible within the setting of this care home for her to self-isolate if she contracted Covid-19;

iv. Every member of staff, and every other resident of V's care home, has now been vaccinated. Mr A told me that, while they are not free from the risk of contracting Covid-19 until we are all free from that risk, because no vaccine is 100% effective, this fact nevertheless will result in the care home's residents having greater contact with the outside world in due course. Providing it is safe to do so, he hopes that the residents will be able to venture outside and go for walks, so that they will have something of their basic liberty restored to them. Accordingly, just as the risk to all other residents of the home diminishes, V's risk of contracting the virus will elevate as the outside world gradually returns.”

V’s wishes and feelings

Drawing all the threads of available evidence, it was clear that V, while capacitous, received the influenza vaccine in her care home every year and indeed had done so for the past nine years. She was also readily compliant with the advice of her doctors – and it would appear that V’s response to the Covid-19 vaccine was consistent with her earlier capacitous behaviour. It is also worth noting that V was not anxious about the process of vaccination.

Mr Justice Hayden concluded that SD’s views represented her own carefully analysed and researched view of the risk she perceived the UK authorised vaccine presented. He explained that while strongly held views of well-meaning and concerned family member should be taken into account but never permitted to prevail nor allowed to create avoidable delay and to do so would be to expose the vulnerable to the levels of risk identified above – in the face of “a highly dangerous pandemic virus”. In particular, he emphasised 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

This case serves as a reminder of the absolute importance of keeping P at the centre of the decision making process and reflecting P wishes and feelings.

Do get in touch if you’d like to discuss the issues raised here or if you require support with a Court of Protection matter.

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