For many of us our day-to-day lives have changed a great deal because of the COVID-19 pandemic, and the various lockdowns and restrictions which have followed. Even now, we are warned about a new variant of the COVID-19 virus, which threatens our hopes of returning to ‘normality’, or perhaps launching ourselves fully into a ‘new normality’.
Does the most recent case heard by the Court of Protection mean that my mentally incapable relative will not receive a COVID-19 vaccination?
During the last year, we have all needed to make difficult decisions. The latest decision for many of us has been whether or not to receive the COVID-19 vaccination being offered to all those who wish to receive it in priority group order.
Often we take for granted that we are able to make our own decisions about the things that are important to us. However, what happens if we cannot make our own decisions?
The Mental Capacity Act 2005
The Mental Capacity Act 2005 (MCA) provides as a starting point that we are all assumed to have the requisite capacity to make our own decisions. The MCA also states that every possible effort must be made to support people to make their own decisions wherever possible. The MCA makes it clear that having or lacking capacity must be judged according to the decision being made, as capacity is ‘decision specific’. It is, therefore, completely possible that whilst a person might be able to make decisions about some things in the context of their affairs, they might lack capacity to make decisions about other things. For example, it is important not to assume that if a person lacks capacity to make decisions about their finances, it will necessarily follow that they lack capacity to make decisions about their health and welfare, including whether or not they wish to receive a vaccination for COVID-19.
In cases where it is clear that a person lacks the requisite mental capacity to make their own decisions, or otherwise where there is reasonable doubt and they are assessed by an appropriate person as lacking capacity to make the specific decision in question, the decision must then be made on their behalf, in their best interests.
What if I have a Health and Welfare Lasting Power of Attorney?
If you have a Health and Welfare Lasting Power of Attorney (LPA), then if you lack capacity to make your health decisions, your named attorneys will make these decisions for you. This is one of many important reasons to have LPAs, so that if decisions need to be made on your behalf in the future, you have pre-selected the people you wish to manage this for you. By selecting your attorneys, you can ensure that those appointed are aware of your feelings and wishes, thereby providing the best opportunity for decisions to be made on your behalf in a way that you would have approved.
What if I do not have a Health and Welfare LPA?
In the absence of a Health and Welfare LPA or a personal welfare deputyship appointment, your health decisions, including whether or not you will receive a vaccination for COVID-19, will ultimately be made by health professionals. In formulating the best interests decision on behalf of the incapable party in this context, the health professional should take into account the views of those closest to you. In all best interests decisions, the decision maker should refer to the incapable party to the extent that he/she is able to comment. In addition, the decision maker must refer to the individual in question, considering the risks and benefits to them and their past views on the same or similar subjects. All of this raises the question of what will happen when family/friends of the incapable party and the medical profession disagree on whether or not a person should receive the COVID-19 vaccination.
What if there is a disagreement?
In these circumstances, the Court of Protection will make the decision as to whether or not the incapable party will receive the vaccination for COVID-19. The Court will make a declaration as to whether giving the incapable party the vaccination is lawful and in his/her best interests.
We observed the first vaccination contested decision heard by the Court in the matter of E (Vaccine)  EWCOP 7 (20 January 2021) (Hayden J, Vice President of the COP). Here the son objected to his mother receiving the vaccination. The Court ruled that the incapable party should receive the vaccine, concluding that she was at risk living in care, that she had communicated that she wanted ‘whatever is best for me’, that she was at low risk in the context of adverse effects and commenting upon her previous willingness to receive influenza and swine flu vaccinations.
We have now seen subsequent cases pass through the Court, most recently the matter of SS v London Borough of Richmond upon Thames  EWCOP 31. In this case the incapable party (S), aged 85, suffered with dementia and lived in care. S had repeatedly refused the COVID-19 vaccination offered by the GP attending the care home. The GP completed an assessment of capacity and found that S did not have the requisite mental capacity to make this decision. Importantly, S had also consistently refused vaccinations historically, including the annual flu jab on four recorded occasions. The practicalities of administering the COVID-19 vaccination were also considered by the Judge, where it was concluded that light support restraint and/or a sedative medication would be needed. The Judge held that whilst there was no doubt as to S lacking capacity to make this decision and that it was in her clinical best interests to receive the vaccine, best interests must be scrutinised in a wider sense in a welfare context. The attitude of S appears to be the issue of particular importance in this case. S had expressed strong opposition to medical treatments and specifically vaccinations, and the Judge concluded that these expressed past wishes and feelings should not be ignored purely because of P’s diminished capacity. The issues of destroying the trust that the care staff at the home had built with S and the effective management of the COVID-19 risk at the home, were also important factors in the Judge reaching the conclusion in this case that it would not be in the best interests of S to receive the COVID-19 vaccination.
What is the lesson?
The best way forward is to plan for the unknown and to make a Health and Welfare LPA, so that in the difficult situation where you are unable to make this decision for yourself, a friend or family member who knows you and your preference can make this decision for you. In the absence of this or a welfare deputyship, and in the event of a dispute, the Court of Protection will decide, and clearly great weight will be attributed to the past thoughts and feelings which you have expressed in this context. Clearly, this will not be the last COVID-19 vaccination case heard by the Court, and it must follow that each individual case will be considered according to the particular circumstances of the incapable party in question and the views they have expressed whilst capacitous.
We are here to help. Birketts LLP has a specialist Court of Protection Team who can advise you in respect of this complex and ever-evolving area of the law. The loss of capacity of a friend or family member can be exceptionally difficult to navigate. Our Court of Protection Team are here to support and guide you.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at June 2021.