It was lawful and in the best interests of an 80-year-old care home resident with dementia and schizophrenia to be vaccinated against Covid-19 despite the objections of her son, the Vice-President of the Court of Protection has ruled.
On 8 January 2021 the London Borough of Hammersmith & Fulham informed Mrs E’s Accredited Legal Representative that she was to be offered vaccination on 11 January. However, the son, W, objected to this by email.
Mrs E’s representatives urgently sought a declaration, pursuant to section 15 of the Mental Capacity Act 2005, to the effect that it would be lawful and in Mrs E’s best interests to receive the vaccine at the next possible date.
The Vice-President, Mr Justice Hayden, revealed that there had subsequently been a number of confirmed Covid-19 cases in the care home.
On 22 October 2020 the Court of Protection had declared that Mrs E lacked capacity to conduct ongoing proceedings and make decisions about her residence and care. A final hearing to determine the arrangements for her residence and care was listed for 25th January.
Social workers and other professionals involved in Mrs E’s care said that she was settled in her current care home, though she had consistently expressed a wish to return to her flat.
The son, W, wants her to return home. He believes that his mother is being kept under a regime which he characterises as ‘abusive’.
Following a conversation with Mrs E and her Accredited Legal Representative on 19 January, a GP concluded that Mrs E did not have capacity to determine whether she should receive the Covid-19 vaccine offered to her.
In E (Vaccine)  EWCOP 7 Mr Justice Hayden acknowledged the informality of that assessment but said he was nonetheless satisfied that, it was sufficiently rigorous to comply with section 2 and section 3 of the MCA 2005.
“Mrs E is unable to understand information concerning the existence of the Covid-19 virus and the potential danger it poses to her health. I am also satisfied that she is unable to weigh information relating to any advantages or disadvantages of receiving the vaccine. It is also clear that she cannot retain information long enough to use it to make a decision. This is because of her dementia. I find that Mrs E lacks the capacity to decide for herself whether to receive the Covid-19 vaccine. 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,” the Vice President said.
In relation to Mrs E’s wishes, the judge said:
- Mrs E had, prior to her diagnosis of dementia, willingly received the influenza vaccine and was also recorded as receiving a vaccination for swine flu in 2009. “I consider the fact 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.”
- While Mrs E lacked the capacity to consent to receiving the vaccine, she had articulated a degree of trust in the views of the health professionals who cared for her by saying to the GP that she wanted "whatever is best for me". “Although this is not a capacitous statement, it is in my view important to emphasise it, particularly as it has been repeated.” This was to respect Mrs E's autonomy, which was not eclipsed by her dementia. “Moreover, 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 Vice President went on to consider the views of the son, who was said to be deeply sceptical about the efficacy of the vaccine, the speed at which it was authorised, whether it had been adequately tested on the cohort to which his mother belonged, and, importantly, whether his mother's true wishes and feelings had been canvassed. He also queried whether the tests had properly incorporated issues relating to ethnicity.
Mr Justice Hayden said he respected W's right to his own views. “However, they strike me as 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.”
The judge noted that, in “heartfelt” submissions, the son 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.
The Vice President said that “for the avoidance of doubt and though no epidemiological evidence has been presented”, he took 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,” he said.
The judge continued: “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.”
The Vice President, accordingly, made 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.”