Court of Protection - Vaccination & Best Interests

With the pandemic at last seemingly drawing to a conclusion and restrictions being eased due to the successful roll out of the NHS vaccination programme. Controversies as to whether the benefits of being vaccinated outweigh the risks continue in certain instances.

The Court of Protection has recently had to grapple with the issue of whether it is in a person’s best interests to receive the vaccine on a number of occasions.

SD v Royal Borough of Kensington And Chelsea [2021] EWCOP 14

In the recently decided case of SD v Royal Borough of Kensington And Chelsea [2021] EWCOP 14. P's daughter sought a declaration that it would not be lawful or in P’s best interests to administer her mother with a vaccine against Covid-19, or indeed, any other vaccine, on the basis that to do so would be contrary both to P’s best interests and to what the daughter contended would be her wishes.

The facts of the case being that P resided in a care home and had done for the last decade. All the other residents and staff at the care home had received the Covid-19 vaccine. P's daughter was however of the view that her mother should not receive it because of the daughter's concerns about the speed at which the vaccine had been developed and approved. The court therefore had to determine whether it was in P’s best interests to receive the vaccine or not. The court held that the risk to P's life and health, if she were not to receive the vaccine, was high and accordingly it was in her best interests to receive it.

CR, Re [2021] EWCOP 19

In CR, Re [2021] EWCOP 19 which was the first case of this kind in the North West region. The court had to determine whether it was in the best interests of CR to have a vaccination against Covid 19. The proceedings were brought as a medical treatment matter by the applicant local NHS CCG.

The facts of the case being that CR is 31 years old and had been diagnosed with a lifelong severe learning disability, autism and epilepsy and was also very overweight. The professionals involved in CR's care all shared the opinion that it is in his best interests to have the vaccination. P's father opposed the application for several reasons including the speed with which it had been developed and approved. He also agreed that at least in part his concerns were linked to the now discredited theories proposed by Dr Andrew Wakefield as regards the link between autism and the MMR vaccine, and which he still believed were accurate. The matter came before His Honour Judge Butler who held that:

3.8. I accept that CR is not elderly, and therefore the same level of risk does not exist for him, but the evidence is still that such a risk exists (and which is why he is categorised as being in a clinically vulnerable group) and the consequences of infection are also still high, and engage his rights pursuant to Article 2 of the ECHR ('Everyone's right to life shall be protected by law'). CR, of course, has the same rights as everybody else who has capacity. So, notwithstanding that CR has the advantage of youth on his side, in my judgment CR still faces a real and significant risk to his safety if the vaccination is not administered. For the avoidance of doubt this applies to both doses. I am also reminded by Mr Wenban-Smith that 'There is a very strong presumption in favour of taking all steps to prolong life, and save in exceptional circumstances …. The best interests of the patient will normally require such steps to be taken. In the case of doubt, that doubt has to be resolved in favour of the preservation of life' (Munby J R (Burke) v GMC [2004] EWHC 1879 (Admin) and which was approved in the Court of Appeal).

3.9. The views of SR (and which are apparently shared by his mother and twin brother) are genuinely held. He spoke to me at Court with conviction and with great clarity. I have no doubt whatsoever that his objections are founded on a love for CR and a wish to ensure that he comes to no harm as a result of another vaccination and until there is greater clarity in terms of medical science. His objections were not intrinsically illogical. They were certainly not deliberately obstructive. They were made upon the basis as to what he regards as being in the best interests of CR. That concern for his son does him credit, in my view.

The court held that it was in CR’s best interests to receive the vaccine and granted the relief sought by the applicant NHS CCG. The court did not however authorise any physical intervention to administer the vaccine.

SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31

It is not a foregone conclusion that the court will always determine that it is in P’s best interests to receive the vaccine. In the matter of SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31 the Vice President Hayden J had to decide if P should be given the Covid-19 vaccine against her will.

The facts of the case being that P is an 86 year old with a diagnosis of dementia who objected to her current placement in a care home. The degree of P’s diagnosis is acute and advance with P being of the delusional view that she resided with her parents and had a job. P had no recollection of the property she owned and was objecting vehemently against being vaccinated.

The court determined that it was not in P’s best interests to be vaccinated against her will and rejected the suggestion of a family member to trick P into thinking her long dead father wanted her to receive the vaccination as per §32 of the Vice President’s judgment as below:

1. I would add to the identified options above, TB's suggestion that SS be told that her father (now long dead, though very much alive in her mind) has requested that she take the vaccination, in the hope that this will cause her to comply. This involves 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. 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. It is an artifice of a different magnitude and complexion to those earlier more mundane negotiations. It becomes disrespectful to her, not merely as the woman she once was but to the one she is now. Though undoubtedly a well-intentioned suggestion, it risks compromising her dignity and suborning her autonomy. It cannot, in my judgement, be in her best interests. I entirely understand TB's instinctive view that such means might justify the end, given the protection that the vaccine would afford SS. I hope he does not read my reasoning above as, in any way, intended to be a criticism of him. It most certainly is not.

Capacity and choice of location of a birth

Another recent judgment of note in the Court of Protection is the complex case of A NHS Foundation Trust v An Expectant Mother [2021] EWCOP 33. In this case the court had to determine the best interests of an expectant mother with severe agoraphobia who did not have capacity to make decisions about the location of the birth of her unborn child.

The case came before Holman J who firstly agreed in terms of capacity with the expert witnesses and the Official Solicitor that P lacks capacity to make decisions about the location of the birth as her “agoraphobia is so overwhelming that it exerts a significant effect on her ability to weigh matters in the balance if the activity in point entails her leaving her home”. Holman J then went onto to determine P’s best interests and held that P should be admitted to hospital for a planned delivery. The rationale for this being that P may refuse to leave home during the birth. The court also considered the issue of using reasonable force and restraint which Holman J subsequently approved as being in P’s best interests if required to transport P to hospital. The Official Solicitor opposed the use of force and restraint as per §31 of the court’s judgment:

31. Having very anxiously weighed and considered all the factors in this case, I am, on balance, satisfied, albeit in disagreement with the Official Solicitor, that it will be in the overall best interests of this mother if - if the necessity for it arises on the day - some trained and professional force and restraint are used to transport her to hospital, and I will so declare. The declaration will incorporate the final "care plan for delivery" of the baby, which has been amended by me and counsel during the course of the hearing. An official transcript will be made as soon as possible of this judgment, and an anonymised version of the care plan and the order will be annexed to it

It later transpired that P the expectant mother went into labour at home and gave birth in hospital where fortunately no restraint was required.