Best Interests and Covid-19 Vaccinations
The first Court of Protection judgment in relation to capacity, best interests and the Covid-19 vaccination has been published. The matter concerns Mrs E, an 80-year old woman, who had been living in her current care home since March 2020, and her son’s objections to her receiving the Covid-19 vaccination.
Mrs E is reported to suffer from dementia and was diagnosed with schizophrenia 20 years ago. At the time of the application there were a number of confirmed cases of Covid-19 in the care home.
Mrs E’s legal representatives, acting in the context of ongoing proceedings in relation to residence and care, were informed she was to be offered the vaccination on 11 January 2021. Her son, W, objected to this by email on 10 January 2021. Mrs E’s representatives then made an urgent application to obtain a declaration pursuant to s.15 Mental Capacity Act 2005 (‘MCA’) that it would be lawful and in Mrs E’s best interests to receive the vaccination at the next available date.
Hayden J’s judgment of 20 January 2021, whilst fact specific, provides useful insight as regards views obtained in accordance with s. 4(7) MCA and in relation to what might reasonably be expected in the way of capacity assessments concerning the vaccination.
Mrs E’s Capacity to Consent
Mrs E’s capacity to consent to the vaccination was assessed by way of video by Dr Wade, with her representative present on 19 January 2021. The contents of the attendance note are reported as follows at paragraph 10 of the Judgment:
During the call, Dr Wade, who is based at the surgery where Mrs E receives medical treatment, asked Mrs E if she remembered Dr Wade explaining that there was a dangerous sickness called coronavirus. Mrs E replied that she did not. Dr Wade then asked her whether she remembered an earlier visit made by her and her colleague, Dr F, when they came to the care home to deliver injections to protect her against the virus. Mrs E did not reply. Dr Wade asked Mrs E whether she wanted the injection, to which Mrs E replied “Whatever is best for me. What do I have to do?”. She was reassured by Dr Wade that she did not have to do anything at the moment, and that Dr Wade only wanted to know what Mrs E wanted. Mrs E repeated that she wanted “whatever is best for me”. The conclusion of Dr Wade (which was not, in her assessment, in any way delicately balanced) is that Mrs E does not have the capacity to determine whether she should receive the Covid-19 vaccine offered to her.
Hayden J concluded that Mrs E was:
- unable to understand information concerning the existence of the Covid-19 virus and the potential danger it posed to her health
- unable to weigh information relating to any advantages or disadvantages of receiving the vaccine
- could not retain information long enough to use it to make a decision, and
- this was because of her dementia.
It is noted at paragraph 11 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.
Hayden J noted Dr Wade’s assessment was conducted in short order, but was satisfied that it was sufficiently rigorous. It is 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 (para 12). Dr Wade had delicately assessed Mrs E’s range of understanding and appropriately respected Mrs E’s autonomy.
Consideration of Mrs E’s best interests
Mrs E’s wishes and feelings considered pursuant to 4(6) MCA
Hayden J noted that prior to onset of dementia, Mrs E had been willingly vaccinated for flu in accordance with public health advice and for swine flu in 2009. This was relevant as regards the consideration of what Mrs E would choose to do if she had capacity today. She had also articulated a degree of trust in the views of the health professionals caring for her, in saying that she wanted “whatever is best for me”.
W’s views considered pursuant to 4(7) MCA
It is noted that her son did not share that trust. W was:
“deeply sceptical about the efficacy of the vaccine, the speed at which it was authorised, whether it has been adequately tested on the cohort to which his mother belongs, and, importantly, whether his mother’s true wishes and feelings have been canvassed. He also queries whether the tests have properly incorporated issues relating to ethnicity”.
W confirmed that he did not object to the vaccination in principle, he just did not consider that now was the right time for his mother to receive it.
For background, W had a number of concerns regarding those involved in his mother’s care and in relation to the court process (paras 3-9). He believed that his mother was caught in a “conspiracy of neglect and ill treatment”. It is noted that he wished for his mother to return home to live with him because she was subject to a regime which he characterised as abusive.
Hayden J commented that W’s views, whilst he was entitled to hold them, may have been a facet of temperament and personality. It was Mrs E’s approach to life under consideration and not W’s.
Risk to Mrs E
Hayden J set out risk considerations at paragraph 17:
[..] For the avoidance of doubt and though no epidemiological evidence has been presented, I take judicial note of the particularly high risk of serious illness and death to the elderly living in care homes. In stark terms the balance Mrs E, aged 80, must confront is between a real risk to her life and the unidentified possibility of an adverse reaction to the virus. This risk matrix is not, to my mind, a delicately balanced one. It does not involve weighing a small risk against a very serious consequence. On the contrary, there is for Mrs E and many in her circumstances a real and significant risk to her health and safety were she not to have the vaccine administered to her.
The following characteristics were noted to compound Mrs E’s vulnerability to becoming seriously ill with, or die from, Covid-19:
- She is in her eighties
- She is living in a care home
- The care home in which she lives has confirmed recent positive cases of Covid-19
- She has been diagnosed with Type II diabetes; and
- She lacks the capacity to understand the nature or transmission of Covid-19 and is inevitably challenged, as so many living with dementia in care homes are, by the rigours of compliance with social distancing restrictions.
Hayden J concluded:
It is a fact that Mrs E 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, and it is required to be confronted as such. The vaccination reduces that risk dramatically and I have no hesitation in concluding that it is in her best interests to receive it. Accordingly, I make the declaration, sought by Mrs E’s representatives, pursuant to section 15 MCA 2005.
In light of the Covid-19 outbreak at the home, it was noted that Mrs E should receive the vaccine as soon as practically possible.
Should you require any support in relation to capacity or best interests or wish to discuss how to respond to any queries or concerns raised by family or friends please do not hesitate to get in touch.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.