Alexi Norris: Mandatory Vaccinations & Vaccine Hesitancy – The Court of Protection [edited by Anna Dannreuther of Field Court Chambers]

Generally speaking, you cannot be forced to undergo medical treatment without your consent. However, there are exceptions to this rule. For people who lack the capacity to make decisions about their care and treatment, the Mental Capacity Act 2005 allows other people to make the decision for them, if it is in their best interests. Under the Mental Health Act 1983, patients who are detained can also be treated without their consent in certain circumstances.

This year, five cases have been brought to the Court of Protection regarding vaccinations for those who lack capacity with three being before The Vice President of the COP, Mr Justice Hayden:

NHS Tameside & Glossop CCG v CR [2021] EWCOP 19

SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14

Re AD; A CCG v AD [2021] EWCOP 47

SS v Richmond Upon Thames London Borough Council [2021] EWCOP 31

A Clinical Commissioning Group v DC & Ors [2022] EWCOP 2

In summary, the COP has tended to find that it is in the person lacking capacity (“P”)’s best interests to have the vaccine, contrary to the wishes of family members who have expressed their objections. The COP has strongly emphasised that these cases must weigh up expressions of objection and rejections, and must reach a decision on what P’s best interests are.

HHJ Hayden made it plain that when the COP makes a declaration on the protected person’s treatment, the COP must consider all the relevant circumstances, including:

  • The past and present wishes and feelings of the families – as far as they are ascertainable;
  • Beliefs and values of the person who would’ve had capacity;
  • Other factors that P would consider;
  • The views of people who care for P and are interested in their welfare;
  • Concerns and objections of family members.

These factors should create a relatively clear map for the court to determine and weigh the risks to the protected person.

Lady Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67 decided that the court should adopt a ‘best interests’ analysis which considers patients’ welfare in their widest sense:

The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.’

Lady Hale, Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67

HHJ Hayden noted the ‘best interests’ test in three of the four cases listed above, which includes considerations that the COP must note when deciding to make the order that the treatment imposed is in the parties best interest (s. 16 Mental Capacity Act).

Matrix of Risk

HHJ Hayden heavily relied upon a “Matrix of Risk” in E v London Borough of Hammersmith and Fulham. This included noting the painful history of care homes during the pandemic, especially as one quarter of Covid-19 deaths had occurred in care homes, and the publicised and statistically established vulnerableness of care home residents:

For the avoidance of doubt and though no epidemiological evidence has been presented, I take judicial note of the particularly high risk of serious illness and death to the elderly living in care homes. In stark terms the balance Mrs E, aged 80, must confront is between a real risk to her life and the unidentified possibility of an adverse reaction to the virus. This risk matrix is not, to my mind, a delicately balanced one. It does not involve weighing a small risk against a very serious consequence. On the contrary, there is for Mrs E 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.

E (Vaccine) [2021] EWCOP 7, at [17] (emphasis added)

Autonomy

E v London Borough of Hammersmith and Fulham concerned an 80-year-old woman who has dementia and is diagnosed with schizophrenia. Similar to the other COP vaccine cases, the local authority informed Ms E that she was going to be offered a vaccination and her son and objected to it. The COP in this case took into account Ms E’s prior autonomy. HHJ Hayden also considered Ms E’s past and present wishes and feelings, by virtue of s.4(6) MCA 2005. He considered 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. Prior to Ms E’s diagnosis of dementia, she willingly received the influenza vaccine and was also recorded as receiving a vaccination for swine flu in 2009.

Importantly, when Ms E had capacity, she chose to be vaccinated in line with public health advice, and HHJ Hayden considered this to be relevant in assessing whether or not to approve the administering of the vaccine. Ms E notably said that she wanted “whatever is best for me”. The COP notes that this is not a capacity statement, HHJ Hayden did say her remarks and wishes should be emphasised: ‘her straightforward and uncomplicated approach resonates with the trust that she has placed in the medical profession in the course of her life, illustrated by her earlier reaction to vaccination’ [14]. The COP has regard to these statements so her autonomy is not eclipsed by dementia; there was some medical history to support her autonomy.

High Risk

Of course, we must ask what if the vulnerable person is not considered high risk? The COP acknowledged this in Re AD; A CCG v AD stating that even though the person is not high risk, a risk still exists regardless. P, known as AD, was clinically overweight, lived in supported living with a 24/7 package of care and support from a private care provider, and was diagnosed of a moderate Learning Disability, as well as Down’s Syndrome and Autism. AD was also of BAME heritage. Brown J determined that the risks still apply as AD was clinically vulnerable and was in a care home setting. Brown J noted Burke v GMC [2005] EWCA Civ 1003, which determined that there is a strong presumption in taking all steps to prolong life except in exceptional circumstances.

What is important to note in A CCG v AD, is that Brown J declined to authorise in advance the administration of AD’s booster dose without another hearing.

The CCG submitted that under s.4(7) of the MCA, AD’s family views must be taken into account when determining his best interests. The COP determined that they were ‘not determinative’. Brown J cited HHJ Hayden’s dicta SD v Royal Borough of Kensington and Chelsea [2021], at [26]:

strongly held views by well-meaning and concerned family members should be taken into account but never permitted to prevail nor allowed to create avoidable delay. To do so would be to expose the vulnerable to the levels of risk I have identified, in the face of what remains an insidious and highly dangerous pandemic virus”.

HHJ Brown stated “These factors must be weighed in the balance, with all the other evidence about the risks to AD of contracting Covid-19 versus the risks to him of carrying out the vaccination”. However, the COP does indeed consider the complicated family histories and views that may misalign, which, as stated earlier, is a relevant circumstance that the COP must consider. However, it is not the COP’s job to equation sincerity, but they do note that ‘familial love and concern can preclude than focus objective decision making’.

Lastly, the COP has made it plain that it is ‘not the court’s function to arbitrate medical controversy or to provide a forum for ventilating speculative theories’ (HHJ Hayden per [30] in Re E). The COP also emphasises that they are by no means authorising physical intervention to administer Covid-19 vaccines.


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