It is in the best interests of an 80-year-old care home resident with dementia and schizophrenia to be vaccinated against Covid-19 despite her son’s objections, the Vice-President of the Court of Protection has ruled.
In the first reported Court of Protection judgment on capacity and best interests in relation to the Covid-19 vaccine, Mr Justice Hayden said the woman, Mrs E, who lacks capacity to decide whether she should have the jab, should receive the vaccine “as soon as practically possible”.
On 8 January 2021, Hammersmith and Fulham council informed the woman’s accredited legal representative (ALR) that she was to be offered the Covid-19 vaccination on 11 January 2021.
Her son, W, who does not have power of attorney for health and welfare, objected to this the day before the scheduled vaccination, leading to the plan being halted.
What this case means for practice
Community Care Inform Adults users can read a full analysis of the case, drawing out its implications for practice, written by legal editor Tim Spencer-Lane.
W, the judgment said, was “deeply sceptical about the efficacy of the vaccine, the speed at which it was authorised, whether it has been adequately tested on the cohort to which his mother belongs, and, importantly, whether his mother’s true wishes and feelings have been canvassed”.
In response, Mrs E’s representatives urgently sought a declaration from the court that it would be lawful and in Mrs E’s best interests to receive the vaccine at the next possible date.
‘Whatever is best for me’
In considering capacity, Justice Hayden reviewed an attendance note of a video conversation between Mrs E, her ALR and her GP.
During the call, the GP, Dr Wade, asked Mrs E if she remembered her previously explaining that there was a dangerous sickness called coronavirus, to which Mrs E replied that she did not. The GP then asked her whether she remembered an earlier visit made by her and her colleague, Dr F, when they came to the care home to deliver injections to protect her against the virus; Mrs E did not reply.
When the GP asked Mrs E whether she wanted the injection, she replied: “Whatever is best for me. What do I have to do?”.
Dr Wade said that she only wanted to know what Mrs E wanted and Mrs E repeated that she wanted “whatever is best for me”. Mr Justice Hayden agreed with the GP that Mrs E lacked capacity to decide whether she should have the vaccine, on the grounds that she was unable to understand, weigh or retain information concerning the existence and risks of Covid-19, because of her dementia.
He added: “It strikes me that Dr Wade got the balance entirely right, her enquires respected Mrs E’s autonomy and delicately assessed her range of understanding.”
Judge notes previous vaccinations
As required by section 4(6) of the MCA, in determining best interests, Mr Justice Hayden considered, so far as is reasonably ascertainable, Mrs E’s past and present wishes and feelings, the beliefs and values that would be likely to influence her decision if she had capacity and any other factors she would be likely to take into account if she were able to do so.
He found that, prior to her diagnosis of dementia, Mrs E 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,” he ruled.
He also noted that, while she lacked capacity to consent to receiving it, she had “articulated a degree of trust in the views of the health professionals who care for her by saying to Dr Wade that she wanted ‘whatever is best for me’”. He considered that it was important to emphasise this statement “particularly as it has been repeated”.
Views of Mrs E’s son
Justice Hayden was required to consider the views of Mrs E’s son, as someone interested in his mother’s welfare, as per section 4(7) of the MCA.
While Mr Justice Hayden said he respected W’s right to his own views, they struck him 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.”
‘A risk of death’
The judgment listed a number of factors increasing Mrs E’s vulnerability to becoming seriously ill with, or die from, Covid-19:
- She was in her eighties.
- She was living in a care home.
- The care home in which she lives had confirmed recent positive cases of Covid-19.
- She had been diagnosed with Type II diabetes.
- She lacked the capacity to understand the nature or transmission of Covid-19 and was “inevitably challenged, as so many living with dementia in care homes are, by the rigours of compliance with social distancing restrictions”.
Justice Hayden said: “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.”
He concluded: “The vaccination reduces that risk dramatically and I have no hesitation in concluding that it is in her best interests to receive it.”