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Senior judge declines to order Covid vaccination of 86-year-old woman

The Court of Protection has ruled that an 86-year-old woman with dementia should not be either forcibly given a Covid vaccine or deceived into accepting a jab.

The case of SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31 was brought before Mr Justice Hayden, vice president of the Court of Protection, by the London Borough of Richmond upon Thames and South West London Clinical Commissioning Group.

Hayden J was told “kung fu experts” would be required were SS to be vaccinated against her will such was the likelihood of resistance.

Proceedings were brought under section 21A of the Mental Capacity Act 2005.

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SS lives in a care home, but imagines herself to be living with her parents in the immediate post-war era and has no family other than occasional visits from a cousin.

The judge said it was “clear that SS lacks capacity in all the spheres of decision taking assessed”.

SS had refused a Covid-19 vaccination, which the care home management wished her to take for her protection and to minimise the presence of the disease in the home.

Her cousin had occasionally been able to induce SS to be co-operative by claiming that her parents wanted her to take a particular course of action - even though they are long dead - and had suggested this method might be deployed to get her to accept vaccination.

Hayden J said that he had before him “substantial material from which to conclude that SS if capacitous would most likely have declined the vaccination”, due to her suspicions of medicine in general.

He agreed with the CCG’s contention that being vaccinated would be in SS’s best interest “were I to confine the issue solely to the health-related states, events and data” but said he was also required to evaluate her welfare.

Hayden J said: “I was told that there was no question of SS being supine or passive if she recognised that the vaccination was being given against her will.

“One of the carers noted that those involved in attempting any 'gentle restraint’ had better be ‘kung fu experts', as she put it.”

SS would be likely to look to carers for help during any such attempt and they would be unable to intervene, which “would be distressing for both parties” and would “most likely dismantle the tentative trust that had been established” between SS and staff.

He dismissed their idea of telling SS that her parents wanted her to be vaccinated as “feeding into a delusional belief system”.

"Whilst that may occasionally have been necessary in negotiating routine day to day challenges, it risks, in this context, compromising all involved,” the judge said.

“It requires there to be a collusion to trick SS into complying with a vaccination which, on balance, it seems unlikely she would have wanted whilst capacitous and certainly does not want at this point.”

Hayden J said although well intentioned such action “risks compromising her dignity and suborning her autonomy”.

Mark Smulian

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