Capacity and Consent in an age of COVID - Where are we now?

30th March 2022


In early 2021, I wrote an article in the midst of the vaccine roll out, a time of hope and elation for some, but a time of worry and apprehension for others.

The roll out of the vaccine was met with debate from many, as to whether to have the vaccination, with many different reasons for people in both camps choosing their stance. This did however give rise to an interesting question as to what should occur when a party lacks capacity to make that decision for themselves.

In my previous article which you can read here, I discussed the case law that had recently investigated this. The cases at that time had always concluded that it was in the best interests of that party to receive the vaccine, though the judges had reached this conclusion via different means.

The passing of the last 12 months has given us not only a greater understanding of the vaccines and any side effects, but a movement towards living with the virus and a push to return to normal life. This has resulted in a flurry of new cases in the court with new arguments supporting either side. I have rounded up a few of the more thought-provoking ones below.

SS V London Borough of Richmond 2021 EWCOP 31 April 2021.

The patient, in this case, was living in a care home and suffering from dementia. The patient had no close family or friends. When asked if she would like the vaccine she strongly declined. The court considered that although the care home had suffered a high number of covid related deaths, due consideration must be given to Section4(6) of the Mental Capacity Act 2005 which states:

“He must consider, so far as is reasonably ascertainable—

(a)the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)the other factors that he would be likely to consider if he were able to do so.”

In this case, there was a clear pattern of refusal throughout the patient’s life when she had capacity. All vaccinations had been declined and there were no records of any flu jabs being administered. The judge in this case was therefore comfortable stating that had she had capacity, she would have most certainly declined the covid vaccine.

This, combined with the fact that physical restraint would likely be necessary to administer the vaccine, which would cause undue distress. It was also noted that the patient was naturally inclined to stay away from other residents which made it clear that in this particular case, it would not be in the best interests of the patient to administer the vaccine, giving consideration to the patient’s wider sense of welfare.

A CCG V AD 2021 EWCOP 47 MAY 2021

The person at the centre of this case was in his 30s living in supported living with moderate learning difficulties including downs syndrome and autism. He was clinically extremely vulnerable.

His father and professionals agreed with him receiving the vaccine, but his mother did not due to the distress it would cause him. He had previously refused to engage with health interventions for other matters.

The court considered that this man was a very sociable person in the community, he would not be able to socially distance and given his extreme vulnerability, it was in his best interests to have the vaccine. The court authorised chemical sedation to make the experience less stressful for the man but explicitly stated that the use of force was not authorised.

The court authorised the vaccine but notably not the booster, as the reaction of the gentleman to the vaccine was unknown at the time and medical guidance relating to the vaccine may change in the future.


This case concerned a man (DC) aged 20 who had serious physical and mental disabilities, weighing no more than a small child.

The parents opposed this vaccine being given due to safety concerns because of DC’s fragility. In physical terms he was a small child even though he was an adult. At the time no advice on the suitability of the vaccine for children had been given. This created a very interesting issue for the court.

In this case, the context in which this application was sought is crucial, the national picture of covid was and continues to be ever changing. This case was brought before the court right as all restrictions were to be lifted. Therefore, this decision was more urgent as DC was unvaccinated and vulnerable person at a much greater risk than others particularly as life was going back to normal.

HHJ Burrows found that DC would have greater enjoyment of life by being able to participate in society with the vaccine, given this and his vulnerabilities, both the vaccine and boosters were authorised, but no physical restraint was authorised.

These cases clearly demonstrate how the everchanging national picture will continue to have an impact on decisions such as these. These decisions are complex, and a one size fits all approach is not appropriate. Nobody can say that it is always in the best interests of a person who lacks capacity to have the vaccine, though the majority of the cases have come to this conclusion. Each case must be considered entirely on its own merit with full consideration given to the Mental Capacity Act and the wider sense of welfare of the individual. It will be interesting to see how the court’s stance develops as we move on from the pandemic.

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