COVID-19 Vaccine Reaches The Court Of Protection

The current and on-going pandemic has divided opinions across the world as to how best to limit its spread and ensure a return to the previous normality, and within the UK, at least, there are many contrasting viewpoints. One contentious issue, in particular, centres on the reliability of the many vaccines that are now available, and there are concerns its expedited authorisation has meant that proper testing has not been carried out, something which is not accepted by the UK Government’s scientific advisors. With the vaccine not yet being mandatory in the UK, individuals are able to decide whether or not they take up the offer. This creates an issue where individuals lack the required capacity to agree to the vaccine.

This matter was recently brought before the Court of Protection in the case of Re FEE (by her accredited legal representative) v Hammersmith and Fulham London Borough Council.

Re FEE (by her accredited legal representative) v Hammersmith and Fulham London Borough Council

This case revolved around a Protected Party who had been diagnosed with dementia and schizophrenia, having lacked capacity to consent to medical treatment for around 20 years. The Protected Party was, by extension, unable to decide whether or not she should receive the vaccine and the Local Authority, therefore, decided she would receive the vaccination in January 2021 as this was deemed to be in her best interests.

The Protected Party’s son, however, whom it should be noted was not her attorney, objected to the vaccination as he had his own views that the vaccine had not yet been proven to be reliable. The Protected Party’s representatives, in support of the vaccination, sought the declaration of the Court of Protection that she should have the vaccination against the wishes of her son.

The Court of Protection first considered the Protected Party’s capacity – a starting point in any Court of Protection case. In order to have capacity to make this decision, the Protected Party would have been required to understand medical advice given to her, retain that information, use that evidence to weigh up the pros and cons of accepting the vaccine, and communicate her decision. On the available evidence, the Court declared that the Protected Party lacked capacity to be able to decide whether to be vaccinated. The Court then considered whether it was in the Protected Party’s best interests to receive the vaccine. In doing so, the Court noted:

• The views of the Protected Party’s son as he had a clear interest in her health and welfare;
• In particular, that the Protected Party’s son was not against the vaccine but felt that his mother should receive the vaccine at a later date once it had been tried and tested;
• The fact that there had been a number of confirmed COVID-19 cases in the Protected Party’s place of residence (care home) since the issue was brought to Court; and
• The Protected Party was at the age of 80 and the vulnerability of the elderly living in care homes was high.

On conclusion, the Court of Protection declared that the Protected Party would receive the vaccination at the next available opportunity. The Protected Party was noted to be at high risk of serious illness and death due to COVID-19 and on the other hand, medical advice stated that the vaccination was of minimal to no risk.

Comment

This decision did not go in favour of the Protected Party’s son but it is important to note that the Court of Protection did take account of his point of view and his reasoning. However, the Judge did say that the son’s views were very much his own, and did not reflect the Protected Party’s historic “approach to life” – she had always trusted her treating clinicians and the Judge reminded the parties that the Protected Party must remain “entirely in the centre of this process”.