Covid-19 and the Court of Protection

July 8, 2021

Caitlin Edwards 

In recent months, there have been several recent Court of Protection cases where the Court has had to make a decision as to whether it is in the best interests of the protected party (P) to be vaccinated against COVID-19.

E (Vaccine) [2021] EWCOP 7 (January 2021)

This case involved Mrs E, aged 80, who had lacked capacity to consent to medical treatment for around 20 years due to her diagnosis of dementia and schizophrenia. The local authority believed it to be in her best interest to receive the vaccination, but her son, Mr W, objected.

Mrs E lacked the capacity to fully understand the realities of COVID-19, and this presented challenges regarding social distancing, making her particularly vulnerable.  Prior to her diagnosis of dementia, Mrs E had received vaccinations for influenza and swine flu, and Hayden J was satisfied that, when she had capacity, Mrs E acted in line with public health advice.

Mr W was deeply skeptical about the vaccine. His arguments related to the speed in which it was developed, the extent of the testing carried out, and potential issues relating to ethnicity all of which he believed undermined its reliability. He did not object in principle but believed that now was not the right time for his mother to receive it.

Hayden J discussed that while, pursuant to s.4(7) MCA 2005, he must take into account the views of Mr W as someone interested in Mrs E’s welfare, his views struck him as a “facet of his own temperament and personality” rather than a reflection of his mother’s best interests. Due to the real and significant risk to Mrs E’s health and safety, he determined that receiving the vaccine would be in her best interests.

SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14 (February 2021)

This case related to the welfare of V, a lady in her early 70s who was the resident of a care home. V had had “Korsakoff’s syndrome” for over a decade, a form of alcohol-related brain damage. As V lacked capacity, her daughter, SD, sought a declaration that it would not be in her mother’s best interests to receive the COVID-19 vaccination, a declaration which the local authority opposed.

SD did not feel that the vaccines had undergone a satisfactory number of trials and tests, and there was an unacceptable risk of side effects due to, as considered by her, limited research carried out in relation to her mother’s condition. SD instead favoured an anti-parasitic drug known as ‘ivermectin’ and stated this would be her preferred treatment choice for her mother. Regarding V’s own wishes, SD disclosed that V had trusted doctors throughout her life, unquestioningly following their advice. V had also been receiving the annual flu vaccination every year since her arrival at the care home (something that SD suggested should bear no weight – Hayden J disagreed).

V’s care home had thus far recorded no cases of COVID-19, thanks to a rigid regime of only remote meetings with families and friends. Every other resident and staff member had been vaccinated. Therefore, as these restrictions began to lift, while the risks to the other residents may reduce, the risks to V would likely be elevated, particularly due to her health conditions.

Hayden J emphasised the position that “strongly held views by well-meaning and concerned family members should be taken into account but never permitted to prevail,” and that they were but one factor to consider when determining the best interests of P. Accordingly, it was determined that despite SD’s concerns, it was in V’s best interests to receive the vaccine.

CR, Re [2021] EWCOP 19 (March 2021)

31-year-old CR had been diagnosed with a lifelong severe disability, autism, and epilepsy, and had been living in a care home since 3^rd January 2021. As a result of his conditions, he was regarded as particularly vulnerable to COVID-19, and the applicant CCG sought a declaration that it was in CR’s best interests to be vaccinated. CR’s father, SR, objected to him receiving one.

SR’s main argument was that there were many significant ‘unknowns’ surrounding the vaccine; as it was relatively new, there was a lack of data as to the long-term consequences, particularly in relation to any reactions with CR’s existing medication. The applicant CCG asserted that all professionals involved in CR’s medical care believed it to be in his best interests to be vaccinated.

It was held to be impossible in this case to determine what CR’s wishes would be. While there was reference in the past to CR having a phobia of hospitals and health interventions, in January 2021 he permitted blood samples to be taken from him at the care home, and no physical intervention from staff was required.

HHJ Butler held that, despite CR not being the typical care home resident, and having the “advantage of youth on his side”, he still faced a real and significant risk to his safety if the vaccine was not administered. He also held that SR’s objections had ‘no clinical evidence base’ and were instead intrinsically linked to his broader fears surrounding autism and vaccinations in general. Therefore, it was determined that it was in CR’s best interests to receive the vaccine, with the caveat that no physical intervention be used.

SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31 (April 2021)

This is the first reported case where the Court has held that it was not in P’s best interests to be vaccinated. It concerned SS, an 86-year-old woman with a diagnosis of dementia who was objecting to her care home placement, and the application was brought within the context of s.21A Mental Capacity Act proceedings. All parties accepted the conclusion of the expert consultant psychiatrist that SS lacked capacity to make decisions about her residence and care. SS’s GP conducted a full and detailed assessment of her capacity which Hayden J considered was entirely consistent with that contemplated in the earlier cases of SD v Royal borough of Kensington and Chelsea, and E (Vaccine). Hayden J considered that there could be no doubt that SS lacked capacity to make  a decision on the question of the vaccination and no party sought to argue to the contrary.

Over time, SS had grown increasingly resistant to medical intervention of any kind. A review of her medical records from 1997 onwards showed no record of any vaccinations, and it was noted that she had declined both the influenza and pneumococcal vaccines when offered. On examination by her general practitioner Dr N in March 2021, SS refused the COVID-19 vaccine. It was clear that in this case, any administration of the vaccine would necessitate some degree of restraint or sedation and this, it was argued, would eradicate the tentative relationship of trust that had gradually developed between SS and the staff. Mr Justice Hayden concluded that “Having regard to the available evidence […] there is substantial material from which to conclude that SS, if capacitous, would most likely have declined the vaccination”. Whilst any evaluation of her wishes and feelings was “inevitably imperfect”, SS had “consistently and volubly opposed the vaccination”.

Hayden J rejected the suggestion of SS’s relative TB that she be told her late father (who she believed to still be alive) had recommended she receive the vaccine. He considered that whilst this was a well-intentioned suggestion, due to the high regard SS had for her father’s opinion, this would only result in “compromising her dignity and suborning her autonomy”, and as such would not be in her best interests. As Hayden J noted, SS’s delusional reality is still her reality, and must be respected.

In his addendum report the expert consultant psychiatrist outlined the options available for a non- consenting adult and the likely impact upon SS of administering the Covid-19 vaccine against her wishes using any of the available methods, whilst also highlighting the significance of SS’s vulnerability to COVID-19. Hayden J concluded that should this be a decision restricted solely to what was in the best interests of SS from a medical perspective, there would be no question that she should receive the vaccine. What would not be in her best interests, however, would be the use of restraint or sedation, an important factor as this was most likely the only way a vaccine could be administered successfully.

On balance, Hayden J concluded that when considering the welfare of SS in its broadest sense, receiving the vaccine could not be said to be in her best interests.

Comment

The case of SS is the first time that the court has had a clear and consistent set of views regarding vaccination from P which could assist them. In each of the other cases, the Court was much more limited when determining the wishes of P and was faced instead with a family member who strongly resisted the vaccine being administered. The COVID-19 vaccination is a topic on which there are strong views in both support and opposition, and in each of these cases, reasons cited for apprehension included a perceived lack of testing, limited data regarding the relationship between the vaccine and pre-existing medical conditions and concerns as to potential long-term impacts. Whilst family members may believe they know what is in their relative’s best interests, their objections, often legitimate, do not always have a robust clinical basis, and people are not always able to untangle their own views from an objective assessment of their relative’s needs.

As the relevant factors comprising P’s welfare are carefully balanced on a case-by-case basis, the wider context to each decision is important. As highlighted by Baroness Hale in the case of Aintree University Hospitals NHS Trust v James [2013] UKSC 67: “In considering the best interests of this particular patient at this particular time, decision makers must look at his welfare in the widest sense, not just medical but social and psychological”. Hayden J’s decision in SS came at a time when infection levels were low, restrictions were easing, and there was an (perhaps overly) optimistic sense that the worst had been and gone. At this point however, it would be interesting to consider if the determination would remain the same. There are growing concerns of a third wave, the new Delta variant, and the new requirement that all care home staff must be fully vaccinated. Equally, if there was a case in a few months’ time where more evidence may be available as to side effects, this may assuage the fears of reluctant family members and encourage them to support the vaccination of their relatives. Any declaration of what is in P’s best interests goes to what is in their best interests at that particular time and is therefore subject to change.

In the face of over a year of lockdowns, mutations, and first, second and third waves, it may seem counter-intuitive to conclude that it would not be in someone’s best interests to be vaccinated against this virus, however, it is not inevitable. As per Hayden J in SD v Royal Borough of Kensington and Chelsea: “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”. Indeed, SS is the first reported case where the Court has concluded that it is not. This demonstrates that even in the exceptional circumstances in which we currently find ourselves, where the Court may be incentivised to centre medical opinion in the decision-making process, it remains only one factor to be considered in a broader assessment of welfare. On the face of it, these cases are no different to other instances where the Court has had to make a best interests decision concerning vaccination, and the case of SS is a useful example of how this careful balancing exercise must be carried out in practice.

Caitlin Edwards is a common law pupil at Exchange Chambers under the supervision of Chris Allen. Her experience so far has involved a range of Personal Injury, Court of Protection and Family work. Caitlin will commence her second six and be ‘on her feet’ from September 2021.