This issue came up recently in the case of E v London Borough of Hammersmith and Fulham  EWCOP 7 and here is what happened.
P is 80 years old. She has a diagnosis of dementia and was diagnosed with schizophrenia around 20 years ago. She has lived in a care home in London since the end of March 2020. She has been diagnosed with Type II diabetes.
She was offered the Covid 19 vaccine at the start of January 2021. Her son objected to her receiving this. As a result she did not receive the vaccine.
P's legal representatives sought a declaration from the court that it was lawful and in her best interest to receive the vaccine at the next possible date. There have subsequently been a number of Covid 19 cases in the care home.
P's GP assessed P as lacking the capacity to determine whether she should receive the Covid-19 vaccine offered to her. The judge accepted this assessment.
The Judge went on to assess P's best interest initially considering P's past and present wishes and feelings, the beliefs and values that would be likely to influence her decision if she had capacity, and any other factors she would be likely to take into account if she were able to do so.
P had, prior to her diagnosis of dementia, willingly received the influenza vaccine and is also recorded as receiving a vaccination for swine flu in 2009. The Judge considered that, the fact that when she had capacity, P chose to be vaccinated in line with public health advice, to be relevant to his assessment of what she would choose in relation to receiving the Covid-19 vaccine today. P had also articulated a degree of trust in the views of the health professionals who care for her by saying to her GP that she wanted "whatever is best for me". The judge felt she clearly has placed her trust in the medical profession throughout her life.
The judge then considered the views of P's son as to what was in P's best interest. P's son is deeply sceptical about the efficacy of the vaccine, the speed at which it was authorised, whether it has been adequately tested on the cohort to which his mother belongs, and, importantly, whether his mother's true wishes and feelings have been canvassed. He also queries whether the tests have properly incorporated issues relating to ethnicity.
The Judge noted the particularly high risk of serious illness and death to the elderly living in care homes. He said that the stark balance for P was between a real risk to her life and the unidentified possibility of an adverse reaction to the virus. He did not feel the decision was a delicately balanced one and said there is for P and many in her circumstances a real and significant risk to her health and safety were she not to have the vaccine administered to her. The Judge had no hesitation in concluding that it was in P's best interest to receive the vaccine without delay.
I would anticipate that very few cases involving individuals in a similar situation to P in this case will need to come before the court for adjudication. This case was set against a background of ongoing litigation in the Court of Protection where there was little agreement between P's son and the authorities.
Perhaps of concern is what would have happened if P had not had existing legal representation as the vaccine did not initially take place due to the son's objection.
This case was a relatively straight forward decision for the judge given P's clear past and present wishes and the stark choice between her having and not having the vaccine. The case did though have to come before the court given the disagreement over what was in her best interest.
It has to be borne in mind though that medical cases only need to come before the court when there is a disagreement. Even in complex medical decisions the court has made it clear that where there is a consensus the court does not need to become involved. (If P is opposed to the proposed course of action then there is not consensus)
The fact that certain medical treatments are defined as 'serious' does not determine whether they should be subject to an application to the Court of Protection. Rather they indicate the need for special care and attention to the decision-making process surrounding them, including the appointment of an Independent Mental Capacity Advocate in appropriate circumstances.
If the provisions of the Mental Capacity Act 2005 are followed, any relevant professional guidance observed and relevant guidance in the Code of Practice followed, including as to the undertaking of the decision-making process, then, if there is agreement at the end of the decision-making process as to the decision-making capacity of; and best interest of the person in question, then, in principle, medical treatment may be provided to, withdrawn from or withheld in accordance with the agreement, without application to the court, in reliance upon the defence in section 5 (unless the case involves the serious interference with the person's rights under the ECHR).
Originally Published by Wrigleys Solicitors, February 2021
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