Mental Capacity Act and covid-19 vaccination: the court’s approach so far

There have, to my knowledge, been 2 reported cases on this issue so far: E (Vaccine) [2021] EWCOP 7 and SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14

Initially, I wasn’t planning on talking about this subject. Primarily because for those of us in local authority this is not really high on our priority list and, let’s be honest, we’ve all got enough on our plates. But the reality is, however much this appears to be a ‘health’ issue, and however much we like to think there is a distinction between health and social care, the social workers I work with are finding themselves grappling with this issue quite a lot.

So, here goes.

Both cases seem to have involved significant input from the local authority. In Re E this seems to be because this issue came up in ongoing proceedings, which makes sense. In SD, the local authority appear to have been involved in an application solely on the issue of vaccination. That is interesting to me, because I advocate a ‘hands-off’ approach by social care in issues that relate to health care. My reasoning is that social workers aren’t actually qualified to be making recommendations to the court about health issues which, in my view, includes vaccination. But no doubt Kensington and Chelsea had their reasons for undertaking what will have been a substantial amount of work.

Both cases were heard before Hayden J, Vice-president of the Court of Protection and are interesting reads for case law nerds like me. In truth, the Re E judgement is remarkable largely just because it was the first reported case on this topic.

The capacity evidence was limited, but nonetheless ‘sufficiently rigorous’ to satisfy sections 2 and 3 of the Mental Capacity Act 2005. Whilst I wonder if the same evidence would have been accepted in relation to a less politicised issue, this does seem to represent a pragmatic approach in a case where capacity was not disputed. And that is far from unusual.

Best interests also appears to have been pretty clear cut, at least from a distanced perspective. It was no doubt less simple for everyone involved. But it was clear that E’s present wishes appeared to be in favour of vaccination, or at least she trusted her doctor and was willing to accept their recommendations. There does not appear to have been anything in her past expressed wishes to indicate she would have been against this course of action. As the court has seemed to often lean in favour of giving significant weight to P’s wishes, this alone would be a strong indication of E’s best interests.

But the issue, rightly, didn’t end there. Hayden J sets out very concisely in the judgement the identifiable risks to E of not receiving the vaccine. E was at significant risk of becoming acutely unwell if she caught coronavirus by virtue of both her age and diabetes. It was also recorded that her dementia affected her ability to follow distancing and infection control measures, making it more likely she would contract coronavirus. The fact that she resided in a care home, and care homes have been vulnerable to infection throughout the pandemic was takin into account, as was the fact that the care home had already had an outbreak, and that may well recur.

In contrast, there were no evidenced risks of E receiving the vaccine, although her son raised concerns about its safety and efficacy. The judge concluded that the son had his own motivations, related to his own personality but this ought not to be transferred to his mother, who did not display the same traits and beliefs.

It didn’t come down to the responsible citizen test, but even if it had, E had been actively involved in her community and undertook voluntary work etc so it would be fair to assume that she likely would want to play her part on controlling the pandemic and protecting others, were she able to understand the current situation.

That all seems very neat and tidy.

From my point of view, SD is a more interesting case, because it does seem to have been a more finely balanced best interests assessment.

The case concerned V, a woman with a diagnosis of Korsakovs dementia who resided in a care home of which the judgement speaks very highly.

The proceedings were brought by V’s daughter, SD, who did not wish for her mother to have the vaccine. She presented a range of evidence regarding the risks of the vaccine, and what she considered to be insufficiently rigorous testing that had the vaccines had undergone. That evidence was given mixed weight, being of varying reliability.

Evidence of V’s past wishes was inconsistent. SD stated her mother had placed too much weight on the views of doctors in the past, but also that V was against vaccines having seen the ‘damage’ they caused in her daughter. The judge struggled to reconcile these two statements.

What was clear was that since moving in to the care home she had received her annual flu vaccine each year. When health staff attended the care home to administer the vaccines, V went to the room and had to be informed she would not be given the vaccine. Since that time, V had not mentioned the vaccine nor appeared to give any thought to the issue. SD contended that this was a symptom of her mother’s illness and willingness to ‘follow the herd’.

Hayden J considered that the same risks that applied in Re E applied in this case and ultimately, reached the same conclusion. The reason why I considered this case to be more interesting is because the best interests does seem to have been more nuanced, by virtue of the evidence of her past wishes being less clear.

On one reading, there is a risk that the decision was led by a public policy desire to encourage vaccine uptake. But in truth, it appears to me to be a well reasoned consideration of the strength of contradictory evidence.

Given both of these judgements, it does appear that the court is likely to rule in favour of vaccination in many cases, even where family members are against such measures. Individual consideration is still going to be necessary in all cases, and it is worth remembering that both of these cases concerned medically vulnerable individuals residing in care homes. Where risk factors are less, the best interests may be more finely nuanced.

And something that has come up in more than one conversation I have had on this issue is the issue of restraint for the purposes of administration of the vaccine. Neither case has considered that issue and it is likely that clear evidence of individual risk is going to be needed to justify using any form of restraint. If such a case does come before the court, no doubt we will all read that judgment with interest.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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