Court concludes that it is in the best interests of an 80-year-old woman in a care home to have the Covid-19 vaccine

The earlier post of Anees Hussain called “Fighting coronavirus – a discussion on vaccinations and mental capacity” 6 January 2021  highlighted relevant matters to consider when an individual is found to lack capacity to decide whether they should have the Covid-19 vaccination. As Anees highlighted in her post, it is possible that an individual who lacks mental capacity for other aspects of their life, such as managing their finances,  will retain capacity to make a welfare decision regarding a vaccine. The relevant assessment should be completed by a qualified practitioner.  Before giving the vaccine, the practitioner needs to be satisfied that they have obtained informed consent from the individual and that they have the capacity to make that specific decision.   If there is no agreement as to whether the vaccination is in the person’s best interests, guidance will be required from the Court of Protection.  The recent case of E (Vaccine) (2021) EWCOP 7 (20 Jan 21) is the first reported Court of Protection case to consider the issue of capacity and best interests in relation to the Covid-19  vaccine.

The case involved an  80-year-old care home resident (‘P’), who had a diagnosis of  dementia and schizophrenia. The court considered whether it was in P’s  best interests to be vaccinated against Covid-19 despite objections raised by her son. The son, who did not have health and welfare power of attorney or deputyship, raised objections to his mother having the vaccination the day before it was due to be administered. His objections included concerns about the efficacy of the vaccine, the speed at which it was authorised, whether it has been adequately tested, and whether his mother’s wishes and feelings had been considered. P’s representatives therefore sought an urgent declaration from the court that it would be lawful and in P’s best interests to receive the vaccine at the next possible date.

In considering capacity, Mr Justice Hayden reviewed an attendance note of a video conversation between P, her representative and GP. Although P confirmed that she did not recall the GP previously explaining the dangers of the coronavirus, when the GP asked P whether she wanted the injection, she replied: “Whatever is best for me. What do I have to do?”, and P later repeated this.   Mr Justice Hayden agreed with the GP that P lacked capacity to decide whether she should have the vaccine because of her dementia.  In particular, she was unable to understand, weigh or retain information concerning the existence and risks of Covid-19.

In determining P’s best interests, Mr Justice Hayden considered P’s past and present wishes and feelings, and the beliefs and values that were likely to influence her decision if she had capacity. A significant factor was that, prior to her diagnosis of dementia, P had received vaccinations  for both flu and swine flu. P had  also shown a degree of trust in the views of the health professionals who care for her, and this included saying to her GP that she wanted ‘whatever is best for me’”. Mr Mr Justice Hayden considered that it was important to emphasise this statement, particularly as it had been repeated.

Mr Justice Hayden was required to consider the views of P’s son, as someone interested in his mother’s welfare. However, he concluded that it was P’s approach to life that was relevant, rather than her son’s.

The judgment also highlighted several factors that increased P’s vulnerability to becoming seriously ill with, or dying from, Covid-19 which were also relevant to the decision reached by the court, namely:

1. P was in her eighties;
2. P was living in a care home;
3. The care home in which she lives had confirmed recent positive cases of Covid-19;
4. P had been diagnosed with Type II diabetes;
5. P lacked the capacity to understand the nature or transmission of Covid-19 and was “inevitably challenged, as so many living with dementia in care homes are, by the rigours of compliance with social distancing restrictions”.

Justice Hayden concluded: “It is a fact that (P)  lives in a country which has one of the highest death rates per capita, due to Covid-19, in the world. By virtue of her vulnerabilities, the prospects for her if she contracts the virus are not propitious; it is a risk of death….……the vaccination reduces that risk dramatically and I have no hesitation in concluding that it is in her best interests to receive it.”

In reaching his decision,  Justice Hayden carefully examined the specific facts and circumstances of P’s case, before confirming that it was in P’s best interests to have the vaccine, as soon as practically possible.

Nicola Gunn is a partner in the Court of Protection and Family departments. If you have concerns about whether it is in the best interests of your loved one to receive the Covid-19 vaccine, please contact Nicola on 020 7940 4057 or nicola.gunn@anthonygold.co.uk.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*