Court overrules son’s objections to elderly care home resident receiving Covid-19 vaccine

The Court of Protection has ruled on the capacity and best interests of an elderly care home resident with dementia and schizophrenia and that she should be vaccinated against Covid-19, despite the objections of her accredited legal representative (ALR).

The woman, named by the court as Mrs E, was contacted by Hammersmith and Fulham Council to offer the Covid-19 vaccine on 11 January 2021, but the plan was paused following an objection by her ALR – her son, named as W.

W, who did not hold power of attorney for health and welfare of his mother, objected on the basis that he was “deeply sceptical” of the efficacy of the vaccine, the speed of its authorisation, the range of testing on those similar to his mother, and questioned whether his mother’s views on the matter had been appropriately assessed.

Ruling on the case, Vice-President of the Court of Protection Mr Justice Hayden, considered evidence presented from a video call between Mrs E and her GP, named as Dr Wade.

In the video call, Dr Wade asked Mrs E whether she remembered previous conversations surrounding the emergence of a dangerous new sickness called coronavirus, to which she replied that she did not.

Dr Wade asked if Mrs E remembered a colleague arriving to the care home where she resides to deliver injections to residents to protect them from the virus. Mrs E did not reply.

Dr Wade proceeded to ask if Mrs E wanted to receive the injection, to which Mrs E replied “Whatever is best for me. What do I need to do?”

She was reassured by Dr Wade that she did not need to do anything and that she was trying to ascertain what Mrs E wanted, to which she repeated that she wanted “whatever is best for me.”

Mr Justice Hayden agreed with Dr Wade’s subsequent assessment that Mrs E did not have the necessary capacity to determine whether she should receive the Covid-19 vaccine, on the basis that she could not understand, consider or retain information on the existence and risks of the virus because of her dementia.

Justice Hayden then took assessment of the best interests of Mrs E in line with s.4(6) of the Mental Capacity Act (MCA) by considering, so far as is reasonably ascertainable, Mrs E’s past and present wishes and feelings, the beliefs and values that would be likely to influence her decision if she had capacity and any other factors that she would be likely to take into account if she were able to do so.
The court found that Mrs E had willingly received the flu vaccine, as well as a vaccination for swine flu in 2009, prior to her dementia diagnosis. Mr Justice Hayden ruled that this showed that “when she had capacity, Mrs E chose to be vaccinated in line with public health advice, to be relevant to my assessment of what she would choose in relation to receiving the Covid-19 vaccine today.”

In addition, he noted that despite her lack of capacity to give consent to receive the Covid-19 vaccine, she had “articulated a degree of trust in the views of the health professionals who care for her by saying to Dr Wade that she wanted ‘whatever is best for me’.”

Mr Justice Hayden determined that it was important to note the repetition of the phrase during the conversation with Dr Wade as “her straightforward and uncomplicated approach resonates with the trust that she has placed in the medical profession in the course of her life, illustrated by her earlier reaction to vaccination.”

The views of the son, W, needed to be considered under s.4(7) of the MCA. He had told the court that he did not object to the vaccine in principle but felt that it was not the correct time for his mother to receive it.

However, Mr Justice Hayden said that while he did respect W’s right to hold his own views on the vaccine, that the objection W had put forward was based on “a facet of his own temperament and personality and not reflective of his mother’s more placid and sociable character”.

“It is Mrs E’s approach to life that I am considering here and not her son’s, Mrs E remains, as she must do, securely in the centre of this process,” said the judge.

The court therefore ruled that the consideration of risk in this case was not “a delicately balanced one” and rather concluded that “or 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.”

In his conclusion, Justice Hayden identified Mrs E’s age, her residence in a care home that had recently confirmed cases of Covid-19 and a Type II diabetes diagnosis – alongside her aforementioned dementia and schizophrenia that hindered her capacity to understand the full risks of Covid-19 – as significant vulnerabilities to contracting serious illness or potentially dying from the virus.

“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,” said the judge.

“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. I would add that, in the light of the Covid-19 outbreak at the home, I consider that Mrs E should receive the vaccine as soon as practically possible. I have delivered an ex tempore judgment on this application in order to avoid any further delay.”

Barrister and mental health law writer Alex Ruck Keene addressed the case on his ‘Mental Capacity Law & Policy’ blog, writing that whilst the judge was helped by evidence that showed a precedent for Mrs E’s potential actions if she had full capacity to make her own decision, the ruling did highlight the importance of a focus on the individual, rather than the views of family and friends, when judging best interest cases.

“[This] judgment reinforces the importance of ensuring – as clearly had taken place here – that the process of considering capacity and (where required) best interests takes place in advance of the proposed vaccination so that there can be as little doubt as possible as to what on an individual basis is the right decision to take,” Ruck Keene noted.

He also added that even if W did have had power in relation to the health and welfare of his mother, it may not have changed the outcome of the ruling.

“If discussion with him – in particular discussion aimed at ensuring that he understood that his role was to consider what decision she would have taken, not what decision he wanted to take – did not resolve the position, those involved would have had to consider whether to take the matter to the Court of Protection,” said Ruck Keene.

“At that point, the Court of Protection would have had to make the decision on her behalf – taking due account of W’s views (and the weight to be given to the fact that she had trusted him with decision-making in relation to health and welfare), but proceeding ultimately by what was in her best interests.”