COVID-19 vaccination – how to deal with those who lack mental capacity


08 February 2021

This is a question many people are asking with the biggest inoculation programme the country has ever launched continuing. The Court of Protection has now made its first decision on the matter in Case: E (Vaccine) [2021] EWCOP 7 (20 January 2021) (Hayden J, Vice President of the COP).

Under the national vaccination programme, vaccines are now being offered to people in order of priority group and deciding whether to have the vaccine or not is a choice for those who are offered.

But what happens where the person is not capable of making an informed decision on whether to receive the vaccine for themselves?

The Mental Capacity Act 2005 (MCA) says that support must be offered with decision-making. Additionally, people must be given information in a way they can understand, this could mean communicating with them during lucid intervals, perhaps at their most alert time of day. The MCA also says that we must assume capacity unless we have reasonable doubt. If there is reason to doubt capacity, this needs to be assessed by an appropriate person, such as a GP, social worker or psychiatrist.

If the person does not have mental capacity to make the decision themselves then a ‘best interests’ decision about vaccination will need to be made on their behalf, although they should still be involved insofar as possible. Where there is an attorney for health and welfare or a deputy appointed for personal welfare, they should discuss the risks and benefits of proceeding with the vaccine with professionals but it is ultimately the attorney or deputy’s decision acting in the person’s best interests.

Where there is not a health and welfare lasting power of attorney or deputy for personal welfare, the decision will be made by health professionals in consultation with those closest to the person and those who can comment on what they would have done if they were capable of making the decision themselves. It is imperative that the best interests decision-making must focus on the individual person and include looking at the risks and benefits of them having the vaccine or not, as the case may be.

Under the MCA, the best interests decision must also take into account the person’s past and present wishes and feelings. For example, a consideration could be – have they historically agreed to inoculations such as the annual flu vaccine?

What happens where the parties concerned disagree on whether the vaccine should be administered?

In such circumstances, the Court of Protection has jurisdiction to make a declaration on whether it is lawful and in the person’s best interests to receive the vaccine and the first case went before the Court of Protection in January 2021. An application was required in this case as the woman in question’s son objected to her being vaccinated on the basis that he was sceptical about the vaccine.

The Court of Protection ruled that it was lawful and in the best interests of the 80-year-old woman with dementia and diabetes and who was living in a care home to have the coronavirus vaccine despite her son’s objections.

All parties concerned were satisfied that the woman lacked capacity to decide for herself. She had previously had the annual flu vaccine and she placed a lot of trust in her doctors, who favoured the vaccination. When she was asked her views, she said that she wanted ‘whatever is best for me’. It was also considered that there had also been recent coronavirus outbreaks at the care home.

The best interests decision in this case was made from the woman’s trust in doctors and the immediate risk of COVID-19 for her. This was based on her health and specific situation and it was considered that there would be a low risk of a serious adverse reaction to the vaccine.

What does the outcome of this case mean for my family member or friend?

The decision is useful as it sets out the court's approach to an issue that is expected to arise again during the current pandemic.

It is important to note that this case is fact-specific and it will not necessarily follow that the Court of Protection will take the same stance in every case. A contributing factor to the outcome of this case was the woman’s prior conduct in respect of vaccinations and her attitudes towards healthcare generally. Nevertheless, the decision reinforces the importance of ensuring that the process of considering capacity and best interests is contemplated fully and in advance of the proposed vaccination so that there can be as little doubt as possible as to what is the right decision to take in each case.

If you are concerned about your loved one and they are unable to make decisions for themselves, our Court of Protection Team can advise you further.

Authors

Catherine Frost

Associate (Chartered Legal Executive)

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Jennie Kingham

Senior Associate (Chartered Legal Executive)

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Katie Mayes

Associate (Chartered Legal Executive)

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+44 (0)7929 186674

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