In E (Vaccine)  EWCOP 7, the Vice-President of the Court of Protection, Hayden J, has given the first reported judgment on capacity and best interests in relation to the COVID-19 vaccine. Whilst the judgment is fact-specific, it gives some clear and important reminders of the approach to be taken to this question (see also in this regard our vaccination guide).
The issue arose in the context of ongoing proceedings concerning the residence and care arrangements for an 80 year old woman, E. E was resident at the time in a care home in which there had been a number of cases of COVID-19. On 8 January 2021, the local authority informed her Accredited Legal Representative (i.e. the lawyer acting for her in the proceedings) that she was to be offered the vaccination on 11 January 2021. Her son objected to this, and her representatives made an urgent application for a declaration that it would be in her best interests to receive the vaccine at the next possible date (the slot on 11 January being missed in consequence of the son’s objection).
In relation to the question of E’s capacity, Hayden J was directed to an attendance note of a video conversation between E, her ALR and her GP. It is worth setting out the relevant paragraph (10) of the judgment in full as to what the attendance note said:
During the call, Dr Wade, who is based at the surgery where Mrs E receives medical treatment, asked Mrs E if she remembered Dr Wade explaining that there was a dangerous sickness called coronavirus. Mrs E replied that she did not. Dr Wade then asked her whether she remembered an earlier visit made by her and her colleague, Dr F, when they came to the care home to deliver injections to protect her against the virus. Mrs E did not reply. Dr Wade asked Mrs E whether she wanted the injection, to which Mrs E replied “Whatever is best for me. What do I have to do?”. She was reassured by Dr Wade that she did not have to do anything at the moment, and that Dr Wade only wanted to know what Mrs E wanted. Mrs E repeated that she wanted “whatever is best for me”. The conclusion of Dr Wade (which was not, in her assessment, in any way delicately balanced) is that Mrs E does not have the capacity to determine whether she should receive the Covid-19 vaccine offered to her.
Hayden J acknowledged the informality of the assessment, but was nonetheless satisfied that it was sufficiently rigorous, concluding that Mrs E was (1) unable to understand information concerning the existence of the Covid-19 virus and the potential danger it posed to her health; (2) unable to weigh information relating to any advantages or disadvantages of receiving the vaccine; and (3) could not retain information long enough to use it to make a decision, and that this was because of her dementia.
Of wider note is Hayden J’s observation at paragraph 11 that:
Evaluating capacity on this single and entirely fact specific issue is unlikely to be a complex or overly sophisticated process when undertaken, for example, by experienced GPs and with the assistance of family members or care staff who know P well.
At paragraph 12, Hayden J recognised that assessment in the context of the pandemic and in relation to those in a care home posed an “challenge of unprecedented dimensions,” but took the view that Dr Wade “got the balance entirely right. Her enquiries respected Mrs E’s autonomy and delicately assessed her range of understanding.”
Hayden J directed himself first by reference to s.4(6), requiring him to consider, so far as is reasonably ascertainable, her 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. He noted at paragraph 13 that:
Mrs E 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. I consider the fact that, when she had capacity, Mrs E chose to be vaccinated in line with public health advice, to be relevant to my assessment of what she would choose in relation to receiving the Covid-19 vaccine today.
He also noted that, whilst she lacked capacity to consent to receiving it, she had “articulated a degree of trust in the views of the health professionals who care for her by saying to Dr Wade that she wanted ‘whatever is best for me’. Hayden J considered that it was important to emphasise this statement “particularly as it has been repeated. This is to respect Mrs E’s autonomy, which is not eclipsed by her dementia. Moreover, 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.”
Her son, whose views had to be considered by virtue of s.4(7), was “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” (paragraph 15 – her ethnicity is not disclosed in the judgment). It is perhaps important to note that W told the court that he did not object to the vaccination in principle: he just did not consider that now was the right time for his mother to receive it.
At paragraph 15, Hayden J made clear that he respected W’s right to his own views, but that:
they strike me as a facet of his own temperament and personality and not reflective of his mother’s more placid and sociable character. It is Mrs E’s approach to life that I am considering here and not her son’s. Mrs E remains, as she must do, securely in the centre of this process.
More broadly, Hayden J recongnised that:
17. […] the world faces the challenge of an alarming and insidious virus. Nobody can possibly have missed the well-publicised and statistically established vulnerability of the elderly living in care homes. I have had many occasions to confront it, in the Court of Protection, over the course of the pandemic. 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. (emphasis added)
At paragraph 18, Hayden J identified the following characteristics which compounded E’s vulnerability to becoming seriously ill with, or die from, Covid-19: (1) she was in her eighties; (2) she was living in a care home; (3) the care home in which she lives had confirmed recent positive cases of Covid-19; (4) she had been diagnosed with Type II diabetes; and (5) she lacked the capacity to understand the nature or transmission of Covid-19 and was “inevitably challenged, as so many living with dementia in care homes are, by the rigours of compliance with social distancing restrictions.” In the circumstances, his conclusion is perhaps not a surprise:
19. It is a fact that Mrs E lives in a country which has one of the highest death rates per capita, due to Covid-19, in the world. By virtue of her vulnerabilities, the prospects for her if she contracts the virus are not propitious; it is a risk of death, and it is required to be confronted as such. The vaccination reduces that risk dramatically and I have no hesitation in concluding that it is in her best interests to receive it. Accordingly, I make the declaration, sought by Mrs E’s representatives, pursuant to section 15 MCA 2005. I would add that, in the light of the Covid-19 outbreak at the home, I consider that Mrs E should receive the vaccine as soon as practically possible. I have delivered an ex tempore judgment on this application in order to avoid any further delay.
It is important to note that this judgment is fact-specific, although more broadly relevant are: (1) the observations about the nature of the consideration of capacity; and (2) the approach to best interests (in particular the focus on the person, rather than on the views of their family/others interested in their welfare, save insofar as those views shed light on the person’s likely decision). It undoubtedly helped in this case that Hayden J had what on the face of the judgment appeared to be reliable evidence to help make clear that this was a situation in which it was likely that, had Mrs E had capacity to make the decision, she would have consented to the vaccination. To that end, the judgment reinforces the importance of ensuring – as clearly had taken place here – that the process of considering capacity and (where required) best interests takes place in advance of the proposed vaccination so that there can be as little doubt as possible as to what on an individual basis is the right decision to take.
Finally, it should be noted that even if W had been granted Lasting Power of Attorney by his mother to make decisions in relation to her health and welfare (which it is clear from the judgment he could not have been), what would no doubt have been his refusal on her behalf to agree to the vaccination would not necessarily have been the end of the story. If discussion with him – in particular discussion aimed at ensuring that he understood that his role was to consider what decision she would have taken, not what decision he wanted to take – did not resolve the position, those involved would have had to consider whether to take the matter to the Court of Protection. At that point, the Court of Protection would have had to make the decision on her behalf – taking due account of W’s views (and the weight to be given to the fact that she had trusted him with decision-making in relation to health and welfare), but proceeding ultimately by what was in her best interests.