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Best interests and Covid-19 vaccination in the Court of Protection

The Court of Protection recently ruled that an 86-year-old woman with dementia should not be either forcibly given a Covid vaccine or deceived into accepting a jab. Rebecca Handcock and Hilton Harrop-Griffiths analyse the ruling.

The case of SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31 [2021] EWCOP 31 was the first time the Court of Protection had to consider best interests when P (who lacks capacity) herself expressly objected to receiving the Covid-19 vaccination.

The previous cases (E (Vaccine) [2021] EWCOP 7, and SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14) concerned familial objections.

What is the importance of the judgment?

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The case is a reminder that even where something may seem to be self-evidently in the best interests of someone (such as receiving a potentially life-saving vaccination against Covid-19), welfare must be examined in the wider sense, and a personalised view of best interests must be taken with regards to P’s specific circumstances.

It underlines the importance of placing P as an individual at the very centre of all decision-making, and of treating that individual with dignity and respect.

Background to the case

SS is an 86-year-old woman, living with dementia in a care home. Initially when she was admitted to the home some years before she complied with her medication regime. However shortly after moving into the home she read (and cut out and kept) a newspaper article which she interpreted as saying that medicines “did more harm than good”. Since coming into possession of that article she has been resistant to medical interventions of any kind.

The home in which she lives is a large home – prior to the pandemic it had 99 residents, 27 of whom sadly died during the first “wave” of the pandemic. Of the remaining residents, all but SS and one other have now been vaccinated against Covid-19. A GP has been visiting the home regularly to administer vaccines to residents and had tried on various occasions to persuade SS to accept the vaccine. She steadfastly refused to do so. The GP performed a capacity assessment and found her to be lacking capacity to consent to vaccination.

Factual challenges of the case

One of the difficulties in this case was the lack of a clear picture of SS’s past views on vaccination, and the related difficulty in ascertaining what she might decide for herself, if she had capacity.

Her medical records showed a woman who, prior to her dementia diagnosis, was generally compliant and pro-active in her medical treatment, seeking out medical care when needed and undergoing a number of invasive procedures including blood tests, endoscopy, and ultrasounds.

However, in records dating back to 1997, no evidence could be found of SS being vaccinated at all, and there were four recorded instances (in various years between 2002 and 2014) where SS refused offers from the GP of seasonal influenza and pneumococcal vaccines.

In addition, SS had never married, or had children, or close relations of any kind, save for with her (now long deceased) parents, with whom she lived well into adulthood – indeed she believes she lives with them still.

Her next of kin, a cousin, was unable to shed any light on her views on the subject of vaccination, other than indicating that he would expect that her father would have been in favour of vaccination, whereas her mother may well have objected.

In determining that it was not in SS’s interests in this case to be vaccinated against Covid-19, Hayden J had regard to the likely requirement to restrain and/or sedate her, the fragile bonds of trust which had been built between SS and the staff who care for her, and her natural inclination to avoid others and to be, in a sense, practising “social distancing” despite a lack of understanding of the situation and the risks to her health.

The court heard evidence from two members of staff at the home, who shed light on SS’s personality, and the particular difficulties likely to arise if vaccination were to be attempted against her wishes.

The CCG’s view

The CCG’s submission was that it would be in SS’s best interests to receive the vaccine, on the basis that it is (medically at least) in everyone’s best interest to be vaccinated against a deadly disease, not least those who, like SS in this case, are categorised as clinically vulnerable.

Views of the local authority and on behalf of the applicant

The submission of those acting for SS, and of the local authority, was that viewed holistically and in the specific circumstances of SS’s case, vaccination could not be said to be in her best interests. The court agreed with them.

Rejecting ‘deception in P’s best interests’ argument

The court also examined (and rejected) an argument by SS’s cousin that she might be persuaded to take the vaccine if she were told her father wanted her to have it.

In rejecting such a deception as being in SS’s best interests, Hayden J was keen to emphasise the risk of “compromising her dignity and suborning her autonomy” that such an approach would entail.

Rebecca Handcock of Field Court Chambers represented SS and Tony Harrop-Griffiths from the same set appeared for the local authority.

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