13 April 2021

Court holds it in the best interests of an elderly care home resident to have the Covid-19 vaccine

By Miranda Marshall, Director, Hayes + Storr.

This case is the second reported judgement of this type in as many months and reminds us of the approach taken by the Court of Protection (CoP) where others hold strong and entrenched views about the protected party’s best interests.

The case here is Re V, SD v Royal Borough of Kensington and Chelsea [2021] EWCOP14. It was brought before the CoP under the Mental Capacity Act 2005 by SD, the daughter of V, a lady with severe brain damage in her early seventies, living in care home. SD wished there to be a declaration that it would not be lawful, or in V’s best interests, to administer V with a vaccine against Covid-19.

V had lived comfortably in a care home since 2011. She had Korsakoff’s syndrome, a form of alcohol-related brain damage. V had no mental capacity to make the decision for herself.

SD, who lived in New York, told the care home that V was not to receive the new Covid-19 vaccine (or any other vaccine) because SD did not think that the vaccines had undergone sufficiently rigorous safety trials. In SD’s view there were unacceptable risks of side effects which outweighed the benefit of the vaccine.

SD spoke to V’s GP, who was unambiguously clear that he thought it was in V’s best interests to receive the vaccine. SD made an application to the CoP which came before the Vice-President, Hayden J on 10th February 2021.

SD argued that the Covid-19 vaccine should be regarded as being in ‘preliminary trials’ and that V was being ‘compelled to take part in a trial against her will’. SD said it was in V’s best interests to wait until a ‘safe, effective and properly trialled’ vaccine was available. Although SD produced copious material to highlight the risks of the vaccine, counsel for the Local Authority argued that it was totally eclipsed by the countervailing factors pointing to the vaccination being in V’s best interests. In particular:

1. The vaccines had been rigorously tested and fully approved for use, by the UK Medicines and Healthcare Authority;
2. V’s GP had already considered the minimal risk of side-effects when making his assessment as to V’s best interests; and
3. V’s residence in a care home, age and health meant that V remained at significant risk of contracting Covid-19 and of becoming seriously ill or dying, if she were to do so.

Hayden J quoted from a judgement he had given in a recent case of Re E, in which he stated that he took “judicial note of the particularly high risk of serious illness and death to the elderly living in care homes” and that “the risk matrix was not a delicately balanced one”. He said that “it does not involve weighing a small risk against a very serious consequence. On the contrary, there is for the patient and for many in her circumstances a real and significant risk to her health and safety were she not to have the vaccine administered to her.”

Hayden J found that the risk to V’s life and health if she were not to be vaccinated would be unacceptably high. He concluded by emphasising that “it is the patient’s voice that requires to be heard which should never be conflated or confused with the voice of others, including family members, however unimpeachable their motivations or however eloquently their own objections are advanced.”

This shows that it is the patient’s autonomy and best interests that must be at the heart of decisions under the Mental Capacity Act.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.

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