The Vice-President of the Court of Protection, Mr Justice Hayden has handed down judgment in what is being described as the first reported decision on the issue of the Covid-19 vaccine, capacity and best interests.
The case concerned whether E, an octogenarian and a resident of a care home, should receive a Covid-19 vaccination.
On 8 January 2021 the London Borough of Hammersmith and Fulham informed E’s Accredited Legal Representative (ALR) that she was to be offered a Covid-19 vaccination on 11 January. However, E’s son objected to this and as a result, a decision was made not to vaccinate E on 11 January as planned. An urgent application was made by E's representatives who sought a declaration that it would be lawful and in E's best interests to receive the vaccine at the next possible date. At the time there had been a number of confirmed Covid-19 cases in the care home.
E’s capacity to decide whether she should be vaccinated
Mr Justice Hayden was directed to an attendance note recording a conversation between E, her ALR and a GP, that took place via a video call. The GP concluded that E did not have the capacity to determine whether she should receive the Covid-19 vaccine offered to her.
It is worth noting that Mr Justice Hayden acknowledged the “informality of the assessment of Mrs E's capacity to decide whether to receive the vaccine” but was “nonetheless satisfied” that it was “sufficiently rigorous to comply with section 2 and section 3 of the MCA 2005.” He went on to conclude that E lacked the capacity to decide for herself whether to receive the Covid-19 vaccine.
He explained that “evaluating capacity on this single and entirely fact specific issue is unlikely to be a complex or overly sophisticated process when undertaken, for example, by experienced GPs and with the assistance of family members or care staff who know P well.”
However he recognised that “in the context of a pandemic and for people in the most vulnerable of circumstances i.e. living in care homes, this presents a challenge of unprecedented dimension.”
E’s best interests in relation to the vaccine
In terms of E’s wishes, Mr Justice Hayden considered, so far as was reasonably ascertainable, her past and present wishes and feelings, the beliefs and values that would be likely to influence her decision if she had capacity. It was noted that prior to her diagnosis of dementia, E had “willingly” received the influenza vaccine and was also recorded as receiving the swine flu vaccination in 2009. He took these facts to be relevant to his assessment of what E would choose in relation to receiving the Covid-19 vaccine.
As for E’s son’s views, Mr Justice Hayden referred to those as a person interested in E’s welfare and what would be in her best interests. However, he considered them as a “facet of his own temperament and personality and not reflective of his mother's more placid and sociable character. It is Mrs E's approach to life that I am considering here and not her son's. Mrs E remains…securely in the centre of this process.”
On the issue of risk presented by Covid-19 to E, Mr Justice Hayden lists a number of characteristics which exacerbate her vulnerability to becoming seriously ill with or die from Covid-19. They are her age, living in a care home with a number of confirmed cases to her diagnosis of diabetes and the fact that she lacked the capacity to understand the nature of or transmission of Covid-19.
Unsurprisingly, Mr Justice Hayden came to the conclusion that it was in E’s best interests to receive the vaccine reflecting that E lives in a country which has one of the highest death rates due to Covid-19 in the world and that the vaccine “reduces that risk dramatically”.
This decision while fact specific does provide clarity on approach to those rolling out vaccine programmes for the adult social care sector and of the importance of putting the individual at the centre of the decision-making process.
Do get in touch if you would like to discuss any of the issues raised here or if you have a mental capacity issue you’d like to discuss.
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