COVID-19 vaccine is not in the best interest of P – the first Judgement in the Court of Protection

My colleagues have previously published two blogs regarding decisions in the Court of Protection (“COP”) about administering the COVID-19 vaccinations in the case of E (Vaccine) [2020] and Re CR [2021] . The judgement in each of the aforementioned cases was that the COVID-19 vaccination was in P’s best interest.

This week, in the matter of SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31 the COP has delivered its first judgement in deciding that it was NOT in the best interest of an 86 year old woman (suffering with dementia) (“P”) to have the vaccine against her will. The full judgement can be read here.

This is a significant decision in the COP as all previous judgements to date, have been in favour of administering the vaccine. It also significantly differentiates from the previous COVID-19 vaccine related cases, which focused on P’s relatives being opposed to the vaccine rather than P themselves.  In this case, there was significant opposition from P.

P is a resident in a care home facility and proceedings have been bought on her behalf challenging her place in a care home. During the course of these proceedings, the issue as to whether it is in P’s best interest to have the COVID-19 vaccine arose.

P’s medical records illustrated that she has historically been repeatedly opposed to any kind of medical intervention, with no record of her having any vaccinations since 1997.

It was held that P did not have the capacity to make the decision as to whether she should receive the vaccine and it was therefore for the Court to make a best interest decision. The plan put forward for administering the vaccine involved both sedation and restraint by the carers looking after P. It was felt that this would not be an appropriate method as P would likely look to her carers for help, who would not be able to intervene – a situation that would be distressing for all parties involved.

The Court had to carry out a delicate balancing act in assessing P’s views, the risks to P and the impact on the wider residents and carers if P did not have the vaccine. It was held that there was substantial evidence to conclude that, if P was capacitous, she would most likely have declined the vaccination. P had consistently expressed strong opinions regarding medical treatment but specifically to the COVID-19 vaccination and it was held that her compromised capacity did not justify disregarding her strongly expressed wishes.

The Court therefore held that when evaluating P’s welfare in the broader sense, it was not in P’s best interests to have the COVID-19 vaccine against her will.

During the judgement, Hayden J also took the opportunity to remind all that when assessing whether the administration of the vaccine is in the best interest of an individual lacking capacity, each case has to be assessed on an individual basis, rather than in the wider context of the medical advantages.

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