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Court of Protection rules COVID-19 vaccine should be given in best interest decision

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In January the Court of Protection confirmed that it was lawful and in the best interest of a care home resident for her to receive the COVID-19 vaccination where she did not have mental capacity to consent.

The resident in question (Mrs E) had been diagnosed with diabetes, dementia and schizophrenia and was aged 80 at the time of the hearing. She had not had the capacity to consent to medical treatment of any kind for more than a decade.

Her son objected to his mother receiving the vaccine as, in his own opinion, he considered that the vaccine had not been properly tested on his mother's age and ethnic demographic nor proven to be reliable. He also wished her to return home to live with him. It should be noted that he was not her Attorney or Deputy.

An urgent application was made by Mrs E's representatives for a declaration from the Court of Protection to confirm that she should be given the vaccine against the wishes of her son.

The starting point in the Court of Protection case was whether Mrs E had the capacity to make the decision for herself. Mr Justice Hayden confirmed that Mrs E was:

  • Unable to understand information concerning the existence of the Covid-19 virus and the potential danger it posed to her health.
  • Unable to weigh information relating to any advantages or disadvantages of receiving the vaccine.
  • Unable to retain information long enough to use it to make a decision.

In the UK the vaccine is not currently compulsory and so the question was as Mrs E could not make this decision herself what was in her best interest. When deciding whether it was in Mrs E's best interest to be vaccinated the Court considered the following facts

  • Prior to her dementia diagnosis Mrs E had willingly received the influenza vaccination and later the swine flu vaccination in 2009. This showed that she had chosen to be vaccinated in line with public health advice.
  • Mrs E had voiced trust in the views of the health professionals that cared for her saying to the GP who visited her that she wanted "whatever is best for me". “Although this is not a capacitous statement, it is in my view important to emphasise it, particularly as it has been repeated.” This was to respect Mrs E's autonomy, which was not eclipsed by her dementia.
  • During the proceedings there had been a number of confirmed cases of COVID-19 in the resident's care home.
  • Mrs E did not understand social distancing which increased her risk of infection.

The view of Mrs E's son was also a factor. In his judgement Mr Justice Hayden observed the following in relation to the son's views “However, they strike me 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.”

The Court of Protection declared pursuant to section 15 MCA 2005 that Mrs E would receive the vaccination at the next available opportunity as she was at serious risk of illness and death due to COVID-19 given her age and the outbreak within the care home she lived in.

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