Covid, Consent and the Court of Protection

19 March 2021 by Marina Wheeler QC

 Many of the newly vaccinated booked their appointments with gusto and left with a sense of elation. For others the process wasn’t so simple. We see a snapshot of this in a handful of reported cases from the Court of Protection: 

Re E [2021] EWCOP 7; SD v RBKC [2021] EWCOP 14; and Re CR [2021] EWCOP 19

In these cases, examined below, the relatives of three care home residents lacking medical capacity, objected to their receiving the vaccine against Covid-19. The CoP applied the requirements of the Mental Capacity Act 2005 and ruled, in each case, that the resident patient’s best interests favoured vaccination. 

Mrs E was 80, suffered from dementia and schizophrenia. Her GP approached the subject of the vaccine, but found her unable to understand the nature of the virus, the risks it posed, or the factors weighing for and against vaccination. He considered she lacked capacity but that vaccination was in her best interests. Her accredited legal representative agreed, but her son did not, so the Court was called on to rule. 

Mr Justice Hayden, Vice President of the Court of Protection, rehearsed the requirement of section 4(6) MCA to ascertain her “past and present wishes and feelings”, and “the beliefs and values” likely to influence her decision, if she did have capacity.

He noted that prior to her dementia, Mrs E had willingly had the influenza vaccine as well as a vaccine against swine flu.  She had also expressed a “degree of trust in the views of healthcare professionals by stating that she wanted “whatever is best for me”. This suggested, in the Courts’ view, that she would accept the Covid-19 vaccine today. 

Applying s 4(7) MCA, the Court also considered “the views of those interested in her welfare” and heard evidence from Mrs E’s son. He wasn’t against the vaccine in principle, he said, but doubted its efficacy, questioning the speed of its authorisation, whether it had been tested on the cohort to which his mother belonged and whether issues of ethnicity had been considered. The Court respected his views, it said. However, they were “a facet of his own temperament and personality and not reflective of his mother’s more placid and sociable character”, said Hayden J.

It is Mrs E’s approach to life that I am considering and not her son’s. Mrs E remains, as she must do, securely in the centre of this process.

The decisive factors were these: Mrs E was living in a country with one of the highest per capita death rates from Covid. A quarter of all deaths were among the elderly in care homes. Her vulnerability was compounded by her suffering from diabetes, her inability to socially distance, and the fact that her care home had registered some positive cases of Covid. 

The “risk matrix” involved balancing a real risk to her life against the “unidentified possibility of an adverse reaction” to vaccination. “The vaccination reduces that risk dramatically and I have no hesitation in concluding that it is in her best interests to receive it”.  

The balance was a not a delicate one, the Court found, and granted a declaration. 

A few weeks later, Hayden J ruled in a similar case. “V” came from Poland to the UK. As a young woman she worked as a waitress and had a daughter, but struggled with drink. By the time of the pandemic, in her early seventies, she lived in a care home, with a form of alcohol-related brain damage. Her daughter, “SD”, described as well-schooled and confident, lived in New York. From there she sought a declaration preventing vaccination, on grounds that the safety trials were insufficient and had not focused on patients with dementia and organ damage like her mother. She told the Court her mother was too deferential to those in authority, including medical professionals, and proposed an anti-parasitic drug, “ivermectin” as an alternative to vaccination. 

The Court also heard from “Mr A”, who had cared for V almost daily for nine years, and to whom SD paid tribute. From his evidence, the Court painted a picture of V as having a “robust, sometimes ribald sense of humour”. She had a “gentleman friend” in the home and liked to help clear away dishes, echoing her former work as a waitress. On the day other residents were vaccinated, V followed them into the room then “drifted away” after being told she was not to receive it. 

The Court noted SD’s “own carefully analysed and researched view” of the vaccine, as against its MHRA approval, the minimal risks identified by V’s GP, and the significant risk she faced of contracting the virus and, in that event, becoming serious ill or dying. It also noted that before V had lost capacity she had willingly received the flu vaccine. 

In apply the “matrix of risk”, the Court delivered a powerful manifesto for the Court of Protection. Although well-intentioned, SD was “unable disentangle her own anxieties about the vaccines and her personal scepticism” from discerning her mother’s best interests. 

“V is now an incapcitous [sic] adult” said the Court, “with a long independent life behind her, whose autonomy is protected by the framework of the MCA.” The CoP doesn’t “arbitrate medical controversy or provide a forum for ventilating speculative theories”. Its task is to evaluate V’s situation in light of peer-reviewed research and public health guidelines and set those in the context of the wider picture of V’s best interests. “It is P’s voice that requires to be heard and which should never be conflated or confused with the voices of others.” 

The third case, decided by HHJ Butler in Manchester, concerned “CR”, a 31-year-old man with lifelong severe learning disability, autism and epilepsy. At 22 stone he was very overweight and classed as “clinically vulnerable”. He lived in a care home and lacked capacity to take a decision about vaccination. His father however opposed it, triggering the Court’s involvement. 

The father’s concerns broadly mirrored those expressed in the earlier cases, but with an additional element: he attributed his son’s autism to the MMR vaccination, a theory advanced by Andrew Wakefield in 1998, but roundly discredited since. 

The Court reiterated the classic dicta of Baroness Hale in Aintree University Hospitals NHS Trust v James [2013] UKSC 67 at [24]: “the best interests test should also contain a strong element of substituted judgment. Decision-makers must consider the welfare of a patient in its widest sense… and cited Hayden J’s “matrix of risk”.  It placed less emphasis on “autonomy” – perhaps because there was some evidence before it that CD could be resistant to medical intervention. Indeed, there was reference to CD having a phobia of hospitals, though in January 2021 he permitted a blood sample to be taken, albeit at a time he was sedated (in relation to another condition). 

Relevant factors in considering the vaccine included MHRA approval, the absence of contra-indications for use in this case, and its verified success. 

Referring to the risk matrix, the Court said CR did not face the same level of risk as the elderly, though his residence in a care home, inability to socially distance and his  weight placed him at risk of serious illness and death, engaging his Article 2 rights.

In support, the Court cited Mumby J in R(Burke) v GMC [2004] EWHC 1879 (Admin) (approved by the Court of Appeal):

[T]here is a very strong presumption in favour of taking all steps to prolong life, and save in exceptional circumstances… the best interests of the patient will normally require such steps to be taken. 

No doubt, said the Court, CD’s father’s objections to vaccination were founded on love. They were not “intrinsically illogical” but they had “no clinical evidence base”.  

The Court granted the declaration sought by the CCG, finding “overwhelming objective evidence of the magnetic advantage of a vaccination”. But it explicitly did not authorise “physical intervention” in order to administer the vaccine. In the event of CD objecting, this would presumably require the Court to grapple further with the question of where this patient’s best interests lie.