Capacity and Consent in an age of COVID

4th May 2021


As the UK vaccination roll out continues to go from strength to strength, an invitation to receive a COVID-19 vaccine is met by most with hope and elation and as a sure sign that life is finally returning to normal after what has been a long and difficult period for many of us.

However, what is a simple decision for a lot of us, for those who lack capacity or have a family member who does, this decision can give rise to a much more complicated decision. Namely, can a person who lacks capacity to make decisions relating to their health and welfare, consent to having the vaccine, and what happens if they refuse?

As is to be expected, this is something the Court of Protection has needed to address already. Recently three cases have been heard by the court, each case involving a care home resident who lacks capacity, and a family member objected to their receiving the vaccine. The Honourable Mr Justice Hayden, Vice President of The Court of Protection, heard the first two of these cases.

In the first case, “Mrs E” an 80-year-old woman with a diagnosis of dementia and schizophrenia and a resident in a care home with reported positive COVID cases had met with her GP who considered that she lacked sufficient understanding of the virus and the risks it posed to her. The GP felt that it was in Mrs E’s best interest to receive the vaccine, however, her son disagreed. 

Mr Justice Hayden, following the requirement of section 4(6) Mental Capacity Act 2005, sought to ascertain her “past and present wishes and feelings”, and any beliefs and values that would have been likely to influence her decision, should she have had capacity.

Mr Justice Hayden noted that prior to her diagnosis of dementia, Mrs E had been administered both the influenza vaccine and the swine flu vaccine.  The Courts’ view was therefore, that she would likely have willingly accepted the COVID-19 vaccine today.

Mr Justice Hayden further considered that Mrs E was a resident in a care home, approximately one quarter of all UK COVID deaths were attributed to the residents of care homes. 

He stated at paragraph 18 of his judgement that:

“Mrs E has the following characteristics which compound her vulnerability to becoming seriously ill with, or die from, COVID-19:

i) She is in her eighties;

ii) She is living in a care home;

iii) The care home in which she lives has confirmed recent positive cases of COVID-19;

iv) She has been diagnosed with Type II diabetes; and

v) She lacks the capacity to understand the nature or transmission of COVID-19 and is inevitably challenged, as so many living with dementia in care homes are, by the rigours of compliance with social distancing restrictions.”

He concluded that “the vaccination reduces that risk dramatically and I have no hesitation in concluding that it is in her best interests to receive it”. 

In February 2021, Mr Justice Hayden ruled in a similar case, involving “V” a lady in her early seventies, living in a care home in the South-West of England. Her daughter, a resident in the United States of America, opposed V receiving the vaccine due to her concerns regarding the safety of it. He referenced a similar review of the risks as was present in the case of Mrs E when making his decision.

He concluded:

“I find that the risk to V's life and health, if she were not to have the vaccine, would be unacceptably high and that it is in her best interests to receive it. In cases such as this, there is a strong draw towards vaccination as likely to be in the best interests of a protected party (P). However, this will not always be the case, nor even presumptively so. What it is important to emphasise here, as in so many areas of the work of the Court of Protection, is that respect for and promotion of P's autonomy and an objective evaluation of P's best interests will most effectively inform the ultimate decision. It is P's voice that requires to be heard and which should never be conflated or confused with the voices of others, including family members however unimpeachable their motivations or however eloquently their own objections are advanced.”.

It is important to note therefore, that the decision regarding Court of Protection clients and the covid vaccine must continue, as with all other decisions, to be centred around P’s best interests and wishes. The voices of family and friends, however well intentioned, may not be consistent with this most fundamental principle of our work.

This has been demonstrated recently in a case heard by the Court in March 2021, by His Honour Judge Butler. This case involved “CR” a 31-year-old man with lifelong severe learning disabilities, autism, and epilepsy. His father objected to CR receiving the vaccine due to similar concerns held by the families of the previous cases regarding the vaccine’s safety, and in particular his belief that the MMR vaccine may have caused CR’s autism. Although his concerns were undoubtedly coming from a place of great care, the court found this reasoning to be “intrinsically illogical” and to have “no clinical evidence base”. 

This case however touched upon a further area for consideration, HHJ Butler explicitly did not authorise any physical intervention in order to administer the vaccine to CD should he object to receiving it.

This will no doubt be something the Court will have to consider further as more and more people are offered the COVID vaccine. The development of this will surely be something to avidly watch for practitioners and families alike.

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