Alex RKIn a further judgment concerning vaccination for COVID-19, Hayden J has amplified the approach that he set out in E (Vaccine) [2020] EWCOP 14. In SD v Royal Borough of Kensington And Chelsea [2021] EWCOP 14, the applicant was the daughter of a woman in her 70s living in a care home in the South-West of England. She brought an application, unrepresented, for a declaration that it would not be lawful to administer her mother, V, with a vaccine against Covid-19, or indeed, any other vaccine, on the basis that to do so would be contrary both to her best interests and to what SD contends would be her wishes. The application was resisted by a London local authority (the judgment does not make clear why it was this local authority, given that V was not resident there). Interestingly, Hayden J was content to appoint SD as her mother’s litigation friend, perhaps reflecting the fact that he was sufficiently confident that she was able to relay V’s wishes and feelings, central to his determination of her best interests.
Hayden J’s judgment contained a succinct pen-picture of V’s life which was very relevant to the best interests decision to be made in relation to her. More widely, Hayden J expressed his concern as how the matter had come to court. On 13 December 2020, SD – who lived in New York – had told the care home that her mother was not to receive any vaccine on the basis that she did not think that the vaccines had undergone sufficiently rigorous safety trials and, in her view, there were unacceptable risks of side effects which contraindicated the taking of the vaccine. On the day the care home was set to vaccinate its residents, V had followed the other residents into the room where the vaccinations were being dispensed. She knew nothing of her daughter’s position. Her main carer at the care home had to tell her that she was not to receive the vaccine. She waited for about twenty minutes in the room, and then drifted away. Her general level of functioning meant, it appeared, that the issue had now gone from her mind and she had not returned to consider it. Hayden J considered that there was no question that V did not have the capacity any longer to evaluate the question of receiving the vaccine for herself.
On 14 January 2021 – i.e. a month later, the care home informed the local authority of the situation. The local authority then considered what to do, but does not appear to have made any application – the application brought, nearly a month later, was brought by SD. Hayden J indicated that he considered that the delay was unsatisfactory, noting at paragraph 14 that:
When an issue arises as to whether a care home resident should receive the vaccination, the matter should be brought before the court expeditiously, if it is not capable of speedy resolution by agreement. This is not only a question of risk assessment, it is an obligation to protect P’s autonomy. In the intervening period, Mr A told me that there was a suspected Covid-19 risk in the care home, which happily came to nothing. It is axiomatic that if Covid-19 had entered the home, V would have been at considerable risk. It is important that I record that every other resident and staff member has now been vaccinated.
Hayden J identified the specific risks to V as follows (at paragraph 22):
i. If V were to become infected with Covid-19, she possesses a number of characteristics which make her particularly vulnerable to severe disease or death. She is 70 years of age, she carries significant excess weight, and she has dementia resulting from her Korsakoff’s syndrome;
ii. most importantly, she lives in a care home. It is an inescapable fact that in the UK, more than a quarter of the deaths due to Covid-19 have occurred within care home settings;
iii. V’s particular care home, by virtue of its specialism, deals with a unique category of risk. V has been described as ‘a wanderer’, though far less frequently of late. In consequence of her short-term memory problems, it is impossible for V to follow the principles of social distancing and preventative hygiene measures. Evidence from Mr A demonstrates that she is very sociable, and it would not be feasible within the setting of this care home for her to self-isolate if she contracted Covid-19;
iv. Every member of staff, and every other resident of V’s care home, has now been vaccinated. Mr A told me that, while they are not free from the risk of contracting Covid-19 until we are all free from that risk, because no vaccine is 100% effective, this fact nevertheless will result in the care home’s residents having greater contact with the outside world in due course. Providing it is safe to do so, he hopes that the residents will be able to venture outside and go for walks, so that they will have something of their basic liberty restored to them. Accordingly, just as the risk to all other residents of the home diminishes, V’s risk of contracting the virus will elevate as the outside world gradually returns.
In terms of V’s wishes and feelings, Hayden J rejected the argument advanced by SD that he should place little weight upon the fact that she had received the influenza vaccine every year for the past nine years, because she was simply “following the herd” when she lined and received her flu vaccine and similarly when she put herself forward for the Covid-19 vaccine. At paragraph 24, Hayden J noted that “SD suggests this was attributable to her mother’s cognitive impairments and a facet of her Korsakoff’s syndrome.” However, “[p]aradoxically in the light of the evidence that SD gave, I do not consider that V’s compliance should be attributed to her condition. As SD told me, her mother was, while capacitous, readily compliant with the advice of her doctors. Her response both to the flu vaccines and to the Covid-19 is consistent with her earlier capacitous behaviour.”
SD’s views, it emerged, were driven in substantial part by her interest in exploring “other solutions.” As Hayden J noted at paragraph 29, “[s]he was, to put it mildly, extremely enthusiastic about the viability and potential for an anti-parasitic drug that she had read about, namely ‘ivermectin’. She was in no doubt that this would most effectively protect her mother from the Covid-19 virus.” However, Hayden J continued:
30. Ivermectin has not, at least as yet, achieved credibility with any public health authority, as a treatment for Covid-19; oral ivermectin appears to be an unlicensed treatment for some forms of scabies and other parasites. I found it striking that SD rejected the overwhelming view of the public health authorities in relation to the certified vaccines, speculating about the risks of unforeseen side effects or adverse reactions, yet wholeheartedly embraced the unquantifiable risks of an unlicensed and unendorsed drug.
31. I explained to SD that it is not the function of the Court of Protection to arbitrate medical controversy or to provide a forum for ventilating speculative theories. My task is to evaluate V’s situation in light of the authorised, peer-reviewed research and public health guidelines, and to set those in the context of the wider picture of V’s best interests.
In the circumstances, Hayden J had little hesitation in finding that:
32. Though she has argued her case forcefully, I have been left with the impression that SD is unable to disentangle her own anxieties about the vaccines and her personal scepticism relating to the process of endorsement, from her analysis of her mother’s best interests. SD’s advocacy for the use of ivermectin is both logically unsustainable and entirely inconsistent with her own primary position. I have no doubt that SD’s opposition to her mother receiving the vaccine is generated by real concern and distress. This, however, is not shared by her mother and does not reflect V’s own authentic view. None of this is to question SD’s sincerity, it is simply a reflection of the fact that filial love and concern can sometimes occlude rather than focus objective decision making.
It will not come as a surprised, therefore, to find that Hayden J concluded that it was in V’s best interests to have the vaccine administered. Importantly, perhaps, he made clear that this was the result of a decision on the individual facts of V’s case:
33. […] In cases such as this, there is a strong draw towards vaccination as likely to be in the best interests of a protected party (P). However, this will not always be the case, nor even presumptively so. What it is important to emphasise here, as in so many areas of the work of the Court of Protection, is that respect for and promotion of P’s autonomy and an objective evaluation of P’s best interests will most effectively inform the ultimate decision. It is P’s voice that requires to be heard and which should never be conflated or confused with the voices of others, including family members however unimpeachable their motivations or however eloquently their own objections are advanced. (emphasis added)
Comment
If the decision in E gave helpful guidance as to the (relatively) straightforward issues at stake in considering capacity to consent to the administration of a COVID-19 vaccine, this decision reinforces the centrality of the wishes and feelings of the individual concerned if they do, indeed, lack that capacity.
The decision is also helpful in confirming that situations where agreement cannot be reached cannot be allowed to languish. What the judgment does not address in terms is who should bring the application to court in the event that one is required, nor (in this case) why it was the local authority who were the respondent, as opposed to a clinical body. The local authority (at least the local authority for the area) has a statutory ‘backstop’ responsibility as regards safeguarding obligations, and issues relating to vaccination could, in some circumstances, be seen as a safeguarding matter. However, the normal expectation is that it would be the body with clinical responsibilities towards the person who should bring any application that is required.
