With the UK Government’s current Covid-19 vaccination programme now well underway, the question of consent and whether or not to administer the vaccine to vulnerable loved ones is a particularly topical issue.
Some people have strong objections to the vaccine and might be asking whether, as a person’s family member, deputy or attorney, you are able to make this decision for them. A recent case has considered exactly that and, more broadly, the importance of considering the person’s past and present wishes and feelings when making decisions on their behalf.
The case of E (Vaccine) [2021] EWCOP 7 (20 January 2021) concerned an elderly lady with dementia, ‘Mrs E’, who was due to receive her first vaccination against Covid-19 in January. Mrs E’s son objected to this vaccination on the grounds that the vaccine had not been tested properly and may put his mother at risk. As a result, the vaccination was not carried out. Mrs E was at high risk of contracting the virus, as she lived in a care home with several Covid-19-positive residents.
Mrs E’s representatives sought an urgent declaration from the Court of Protection, under section 15 of the Mental Capacity Act 2005, to declare that it would be lawful and in Mrs E’s best interests to carry out the vaccination. A capacity assessment was conducted and Mrs E’s GP concluded that she did not have capacity to accept or refuse the vaccine herself.
The Court therefore needed to decide whether vaccinating Mrs E would be in her best interests, following the central principles of the Mental Capacity Act. In doing so, the Court considered Mrs E’s past and present wishes and any beliefs or values which might have influenced her decision, if she had been able to make the decision herself. Mrs E had willingly received vaccinations for influenza and swine flu in the past and had expressed trust in health professionals. During her capacity assessment Mrs E stated that she wanted “whatever is best for me”. The judge noted that Mrs E’s own autonomy and views should be recognised and that these were not eclipsed by her dementia diagnosis.
The Court also considered Mrs E’s son’s opposition to the vaccine. The Court felt that his objections were raised predominantly as a result of his own views and personality, rather than those of his mother, which should be at the centre of the decision.
As a result, the Court concluded that given the extremely high risk to Mrs E and her own previous decision-making in relation to medical treatment, it was in her best interests for the vaccine to be administered as soon as possible.
When making decisions as an attorney or deputy, it can be very tricky to put your own views to one side, especially when the decision concerns the person’s health and welfare. Many people will be considering this at the moment in light of the Covid-19 vaccination programme. The crucial question to ask is whether the person themselves would have agreed to the vaccination. As this case shows, your own views will be factored in but the person’s wishes should always be put first.
The case also highlights the effectiveness of making urgent applications to the Court of Protection, where a critical question proves to be controversial and needs to be decided. While the majority of deputies and attorneys will be able to make decisions for loved ones between themselves, disagreements do happen and it can be difficult to decide what is in the person’s best interests.
If you would like advice regarding a Court application, or attorney and deputy decisons, please contact our Vulnerable Clients team.
