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The Court of Protection recently ruled in a case involved an elderly care home resident and the novel issue of covid-19 vaccinations. At a time of an ongoing health crisis, the case must have been particularly difficult for the family who have been prevented from visiting because of lockdown restrictions.
Re E (Vaccine): LB Hammersmith and Fulham v W [2021] EWCOP 7 is the first case of its kind and unlikely to be the last. Private client solicitors are likely to come across this issue as the vaccine rollout continues at pace. The case is, necessarily, fact specific but lawyers will be interested to consider what approach the judge took.
The background
The 80-year-old lady (P) lived in a care home in which there had been a number of confirmed cases of covid-19. P suffered from dementia, schizophrenia and type II diabetes.
She was offered a covid-19 vaccination early in the rollout, but her son objected and it was decided she would not have the vaccination. However, her accredited legal representative sought a declaration under s15 Mental Capacity Act 2005 to the effect that it would be lawful and in P’s best interests to receive the vaccine at the next possible date.
The case brings into sharp focus the wide-spread scepticism around the covid-19 vaccination and the reality that best interests decisions need to be made on behalf of those unable to make those decisions for themselves.
The problem was, P’s son was deeply sceptical about the vaccine, particularly its efficacy, the speed of authorisation, issues around adequate testing and, crucially, whether P’s true wishes and feelings had been canvassed. Compounding his concerns, he also wanted his mother to return home because he seemed to think she was being kept under an abusive regime.
The decision
Mr Justice Hayden made clear that he respected the son’s right to his own views but he felt that they were “a facet of his own temperament and personality and not reflective of his mother's more placid and sociable character”. It was her approach to life and not his that he was considering.
He took the view that without the vaccine, there was a “real and significant risk to her health and safety” both for P and many in her circumstances. He carefully considered both the past and present wishes and feelings, belief and values of P (as far as he could) that would be likely to influence her decision if she had capacity, and any other factors she would be likely to take into account if she could.
He noted that before her dementia diagnosis, she had received the flu vaccine as well as the swine flu in 2009 in line with public health advice.
Hayden J also considered the particular risks to P today. The reality was, she was at risk of death should she contract covid-19.
He allowed the local authority’s application for a declaration under the MHA and advised that P should have the vaccination as soon as practically possible.
The ruling confirms that the key factors relevant to the court’s assessment of the facts and in reaching a conclusion are the individual themselves, their wishes and feelings (past and present) and what is in their best interests now.
As Hayden J stated, “Mrs E remains, as she must do, securely in the centre of this process”.
