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The Covid-19 vaccine and capacity

A senior judge recently ruled that 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. Jennifer Swan analyses the judgment.

It was just over a month between the first Covid-19 vaccination being administered and the first reported COP decision relating to it. As ever, this decision in Re E [2021] EWCOP 7 is fact specific, but there are some important points to take away.

Mrs E was an 80-year old woman, who had been living in a care home since March 2020. She had a diagnosis of schizophrenia and of dementia and there were ongoing proceedings relating to her capacity and residence arrangements. On 22 October 2020, the COP declared that Mrs E lacked capacity to conduct those proceedings. On 8 January 2021, the London Borough of Hammersmith & Fulham informed her Accredited Legal Representative that she would be offered the Covid-19 vaccine on 11 January. The day before she was due to receive the vaccine, her son, W, objected. Mrs E’s representatives sought a declaration (pursuant to s15 MCA 2005) that it would be lawful and in her best interests to receive the vaccine as soon as possible.

The Court considered an attendance note of a conversation between Mrs E, her representatives and her GP. The Judge noted that it was a “relatively informal assessment”, but that it nonetheless complied with ss2 & 3 MCA 2005. Mrs E could not recall previous conversations about the existence of Covid-19, she did not answer when asked whether she could remember previous residents of her care home being vaccinated, and when asked whether she wanted the injection to protect her against “the dangerous sickness” she replied “whatever is best for me”. The Judge had no hesitation in accepting the GP’s conclusion that Mrs E lacked capacity to decide whether she should receive the Covid-19 vaccine.

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Importantly, Hayden J noted that the decision about capacity on this issue of vaccination “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”.

When deciding whether Mrs E should receive the vaccine, Hayden J directed himself first to s4(6) MCA 2005 – the requirement to consider (as far as possible) Mrs E’s past and present wishes and feelings, the beliefs and values which would be likely to influence her decision if she had capacity, and any other factors she would be likely to take into account were she able to do so. He noted:

  • Mrs E had (prior to her dementia diagnosis) received the flu vaccine and had been vaccinated against swine flu;
  • During her life, Mrs E had chosen to be vaccinated in line with public health advice;
  • Mrs E had articulated a degree of trust in the medical professionals looking after her, by saying she wanted “whatever is best” for her – that resonated with the trust she had previously placed in medical opinion.

The Court then went on to consider – per s4(7) MCA 2005 – the views of her son, W, as to what would be in Mrs E’s best interests. W was “deeply sceptical” about the efficacy of the vaccine, the speed at which it had been authorised and the testing process – particularly relating to ethnicity (Mrs E’s ethnicity was not discussed in the judgment).  He did not consider that his mother’s true wishes and feelings had been ascertained. He told the Court that he did not object to the vaccine “in principle”, but did not feel that now was the correct time for Mrs E to receive it.

Hayden J, having heard from W in evidence, considered that these were W’s views, but did not accurately reflect Mrs E’s views and that she was a different personality than her son. His assessment was no doubt made easier by the clear evidence before the Court of Mrs E’s willingness to be vaccinated in previous instances.

Hayden J went on to note the particular circumstances of Mrs E, which made her particularly vulnerable to becoming seriously ill, or dying from, Covid-19 – she is elderly, living in a care home and has type II diabetes. She does not understand the risks of Covid-19, and is therefore challenged by social distancing requirements. It was also noted that unfortunately, the particular care home in which Mrs E resided had recent confirmed cases of Covid-19. Hayden J was very clear in his judgment that the risk presented to Mrs E was a risk of death.

Hayden J balanced the risks which contracting Covid-19 presented to Mrs E and had “no hesitation” in concluding that receiving the vaccine was in her best interests. He made the declaration sought by Mrs E’s representatives.

Given the risks of Covid-19, particularly for those vulnerable individuals who most often find their interests protected by the COP, it would seem that courts will be slow to conclude that the vaccine should not be administered in line with medical advice. However, it will be interesting to see how the courts approach future cases in which P – unlike Mrs E – has not historically been so willing to receive vaccinations.

Jennifer Swan is a barrister and member of the Court of Protection Team at Pump Court Chambers. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..

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