Covid-19: Further Court of Protection decision on the administration of the vaccine.

The Court of Protection has delivered a further decision on the vaccination of vulnerable individuals against COVID-19 in the case of Re CR [2021] EWCOP 19. The full judgement can be found here.

This case can be distinguished from other judgments recently handed down in the Court of Protection, in that it does not concern an elderly person, but rather a 31-year-old man (“CR”) living in a care home with a learning disability, autism and epilepsy. It is important to note that CR is described as overweight and “clinically vulnerable” by reference to the opinion of the Joint Committee on Vaccination and Immunisation. In addition, there was no dispute that CR lacked capacity to make a decision about receiving the vaccine himself and he could communicate only via a limited range of Makaton.

CR’s father was opposed to his son receiving the vaccine for a number of reasons, including the speed with which it had been developed and approved. He also argued that he believed his son’s autism to be attributed to the MMR vaccine that he had received at birth. It is important to note that the link between autism and the MMR vaccine has now been widely discredited.

The earlier blog post of Alice Collier highlighted that when considering best interests in these sorts of cases, the Court is obliged under s. 4(7) of the Mental Capacity Act 2005 to focus on the individual receiving the vaccine, rather than the views of others interested in their welfare. This can be seen in the case of CR, as HHJ Butler ultimately ruled that CR should receive the vaccine, despite his father’s objections.

The Court said that while CR was not elderly and therefore the “same level of risk does not exist for him”, his residence in a care home, inability to socially distance and his weight meant that he still faced a real and significant risk to his safety if the vaccination was not administered. The Court did not doubt that the father’s objections were founded on love, however HHJ Butler stated that they had “no clinical evidence base” and there were numerous reasons citing what the Court deemed to be magnetic advantages of administering the vaccine

There is now a small but developing body of case law on the subject of the COVID-19 vaccine, mental capacity and best interests and it will be interesting to see how this develops with time.

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