Court Of Protection Decides Protected Party Should Be “Offered” Covid Vaccination

There has been an abundance of cases in the Court of Protection concerning whether or not a Protected Party should receive the COVID-19 vaccine. So far, it is clear that the Court of Protection is in favour of the vaccine being administered in the event that the Protected Party lacks the capacity to make that decision for themselves.

However, with the restrictions surrounding Covid having been significantly relaxed, and the objections of concerned relatives remaining unaffected, will the Court of Protection continue to adopt the same approach?

Case background

The administration of the vaccine was recently considered in the case of NHS Liverpool CCG v X (by her accredited legal representative) and another [2022] EWCOP 17. This case concerned X (Protected Party) who was 50 years of age, suffered from severe epilepsy, and had mild learning difficulties. The applicant (the local health authority) was seeking an order from the Court that the Protected Party would be offered the chance to have the vaccine and that it would then be the Protected Party’s choice as to whether or not she went ahead with it. The reason for making the application was that the Protected Party’s family was against her receiving the vaccine on the basis that its long-term effects of it were unknown. The family (in this case the Protected Party’s siblings) also argued that the Protected Party had developed a natural immunity to Covid which had been confirmed by a positive test for antibodies. The family did not want her to be offered the vaccination at all as they did not believe that she would appreciate the risks.

The starting point for the Court of Protection was to decide whether or not the Protected Party had the capacity to decide whether or not she should receive the Covid-19 vaccine. It was readily agreed by all that the Protected Party did not have the capacity to understand what it was and what the effect would be. It was not possible to ascertain the Protected Party’s own wishes based on the evidence before the Court. The Court of Protection considered whether it was in the Protected Party’s best interests to have the vaccination and in doing so, the judge considered medical records and studies in relation to the Protected Party’s epilepsy, the public health guidelines, and the Protected Party’s personal care plan.

The Court’s decision

The Court of Protection concluded that based on the Protected Party’s previous actions, even if she had the capacity it would have been accepted that the Protected Party was classed as vulnerable, and most likely the Protected Party would have accepted the administration of the vaccination despite her siblings’ objections. It was therefore declared that the Protected Party should be offered the vaccination in accordance with her care plan, which would allow the Protected Party to decide whether or not she would have it. The Court believed this would preserve the Protected Party’s independence as far as possible.

In this particular case, it should be noted that the Court of Protection did not order that the Protected Party had to have the vaccination. But the family’s belief that the vaccination would be harmful was not persuasive enough for the Court to deny the Protected Party the opportunity to have it. When reviewing cases such as this, and considering the concerns many people have that the Covid-19 vaccination presents unknown risks, the Court of Protection’s approach appears to be partly driven by relevant medical evidence and we see this repeatedly in such cases.

However, that is not to say that the Court will always order that the Protected Party should be vaccinated – in all Court of Protection cases, the Court’s prime focus is on the Protected Party and what is deemed to be in the Protected Party’s best interests – according to the criteria set out in section 4 of the Mental Capacity Act 2005. The distinguishing element in this case when compared to many others was that the Protected Party shall be offered the vaccine but not forced to have it. The decision the Court reached was based on the Protected Party’s limited ability to make her own decisions, to some extent, and encouraged the concept of the Protected Party exercising some autonomy over health decisions.