Judge reaffirms past vaccine capacity judgement and warns cases must be brought swiftly
Following a similar case in January, a judge has reinforced their previous ruling on the mental capacity and best interests of an individual in order to receive a COVID-19 vaccine, but is critical of the two month delay in resolving the issue.
A judge has ruled that it is in the best interests of an elderly care home resident to receive the COVID-19 vaccine, despite protests from her next of kin.
The daughter of the resident in question had pressed for the right to explore alternative treatments rather than vaccination, but the judge ruled that this would go against the best interests of the individual.
The ruling follows the landmark case in January in which Mr Justice Hayden, the judge in both cases, ruled that an elderly care home resident should receive the COVID-19 vaccine despite capacity objections from a family member.
Read more about that case here:
The daughter, noted in the proceedings as SD, of the woman living in a care home for older residents brought the case to court after initially objecting to her mother receiving the COVID-19 vaccine.
In the court application, SD declared it would be illegal for her mother – known as V – to receive the vaccine on the basis that it would clash with her best interests and individual wishes.
The application was resisted by the Royal Borough of Kensington and Chelsea Council, rather than a clinical body.
The court heard that SD had informed V’s care home that her mother should not receive a COVID-19 vaccine in December 2020.
SD reasoned that she did not believe that the vaccines had received sufficient testing and was concerned about the implications of potential side effects for her mother’s wellbeing.
On the day the care home was to vaccinate its residents, it was found that V had followed the others into the room in which the vaccinations were taking place. She did not know that her daughter had requested for her to not receive the vaccine.
The court heard that after being informed that she was not to receive the vaccine, V waited in the room for around 20 minutes before leaving and did not pursue the issue further herself.
Around a month later, the care home informed Royal Borough of Kensington and Chelsea Council of V’s situation, who considered the next step but did not make an application to court to resolve the issue.
The application was eventually brought before court by the daughter this month. The judge said he found the delay in the resolution of the matter “unsatisfactory”.
“When an issue arises as to whether a care home resident should receive the vaccination, the matter should be brought before the court expeditiously, if it is not capable of speedy resolution by agreement. This is not only a question of risk assessment, it is an obligation to protect [a protected individual’s] autonomy,” said the judge.
Nevertheless, Mr Justice Hayden considered that V’s actions on the day of the vaccination roll-out within the care home was evidence that the issue had disappeared from her mind and ruled that this showed that V did not have the capacity to evaluate receiving the vaccine herself.
In addition, the judge identified that V was at risk due to her age and health conditions, the fact that she lived within a care home setting that was specific for a “unique category of risk,” and the increased likelihood of outside contact as lockdown restrictions ease.
The court also heard that V had received the influenza vaccination for the past nine years.
SD argued that her mother’s vaccination history should be ignored as V was simply “following the herd” when lining up to receive her vaccine alongside the other care home residents, as she had done again for the COVID-19 vaccination.
The judge rejected this, finding that “SD suggests [this action] was attributable to her mother’s cognitive impairments and a facet of her Korsakoff’s syndrome.”
“I do not consider that V’s compliance should be attributed to her condition. As SD told me, her mother was, while capacitous, readily compliant with the advice of her doctors. Her response both to the flu vaccines and to the Covid-19 [vaccine] is consistent with her earlier capacitous behaviour.”
Mr Justice Hayden noted that SD’s objections were driven by her interest in exploring other treatments, as she was “extremely enthusiastic about the viability and potential for an anti-parasitic drug that she had read about, namely ‘ivermectin’”.
“She was in no doubt that this would most effectively protect her mother from the Covid-19 virus.”
Ivermectin is an antiparasitic drug used for river blindness, lymphatic filariasis and other Neglected Tropical Diseases.
A medical analysis that allegedly showed the effectiveness of ivermectin in treating COVID-19 patients from April 2020 was used as evidence to support its use in several Latin American countries, despite warnings from scientific leaders across the world.
Mr Justice Hayden explained that it was “not the function of the Court of Protection to arbitrate medical controversy or to provide a forum for ventilating speculative theories.”
“My task is to evaluate V’s situation in light of the authorised, peer-reviewed research and public health guidelines, and to set those in the context of the wider picture of V’s best interests.”
“Ivermectin has not, at least as yet, achieved credibility with any public health authority, as a treatment for Covid-19; oral ivermectin appears to be an unlicensed treatment for some forms of scabies and other parasites,” the judge continued.
“I found it striking that SD rejected the overwhelming view of the public health authorities in relation to the certified vaccines, speculating about the risks of unforeseen side effects or adverse reactions, yet wholeheartedly embraced the unquantifiable risks of an unlicensed and unendorsed drug.”
The judge concluded that whilst he had “no doubt that SD’s opposition to her mother receiving the vaccine is generated by real concern and distress,” he had been left with the impression that SD was “unable to disentangle her own anxieties about the vaccines and her personal scepticism relating to the process of endorsement, from her analysis of her mother’s best interests.”
As such, the judge ruled that it was in V’s best interest to have the vaccine administered based on the individual facts of the case itself.
“In cases such as this, there is a strong draw towards vaccination as likely to be in the best interests of a protected party (P),” said the judge.
“However, this will not always be the case, nor even presumptively so,” Hayden warned, adding: “what it is important to emphasise here, as in so many areas of the work of the Court of Protection, is that respect for and promotion of P’s autonomy and an objective evaluation of P’s best interests will most effectively inform the ultimate decision.”
“It is P’s voice that requires to be heard and which should never be conflated or confused with the voices of others, including family members however unimpeachable their motivations or however eloquently their own objections are advanced.”
Mental health law writer and barrister Alex Ruck Keene said that this case reinforced how capacity rulings should remain focuses on the wishes of the individual, but also raised questions on who retains the responsibility to bring cases such as these to court.
“The decision is also helpful in confirming that situations where agreement cannot be reached cannot be allowed to languish,” Ruck Keene wrote on his Mental Capacity blog.
“What the judgment does not address in terms is who should bring the application to court in the event that one is required, nor (in this case) why it was the local authority who were the respondent, as opposed to a clinical body.
“The local authority (at least the local authority for the area) has a statutory ‘backstop’ responsibility as regards safeguarding obligations, and issues relating to vaccination could, in some circumstances, be seen as a safeguarding matter.
“However, the normal expectation is that it would be the body with clinical responsibilities towards the person who should bring any application that is required,” Ruck Keene added.