The COVID-19 Vaccine Reaches The Court Of Protection (Again)

The Court of Protection have previously considered the provision of COVID-19 vaccines for those lacking capacity, as in the case of Re FEE (by her accredited legal representative) v Hammersmith and Fulham London Borough Council.

In another new case, the Court commented on what they would consider when making a decision in respect of a person party receiving the vaccine. This has again been brought before the Court of Protection in the case of NHS Tameside and Glossop Clinical Commissioning Group v CR (by his litigation friend) and another. The key difference being the Protected Party was not elderly and therefore not held to be as vulnerable as the Protected Party in the case of Re Fee, which proved to be a fundamental factor in allowing the vaccine to be administered.

NHS Tameside & Glossop Clinical Commissioning Group v CR (by his litigation friend) & Anor

Case summary

The Protected Party in this case was 31 years old with severe learning difficulties and epilepsy, and was deemed to be clinically vulnerable and, therefore, held as a priority in terms of receiving the vaccine.

The NHS applied for a declaration authorising the Protected Party to receive the vaccine. The Protected Party’s father, however, objected to the application on several grounds, including the vaccine not being mandatory, not having a 100% success rate and further, the limited tests and degree of unknown as to how the vaccine would impact the Protected Party’s condition and interact with his currently prescribed medication. Similar to the previous case, the objection was not an outright refusal, but a request that the vaccine should be administered at a later stage after it had undergone more testing.

The Court agreed that the Protected Party’s father’s objections were reasonable and were left to make a decision in line with the best interests of the Protected Party. The Court would make their decision by firstly considering the vaccination and then the Protected Party’s needs. The Court held the vaccine in question had been approved for use in the UK, it would reduce the risk of contracting COVID-19 with serious symptoms, and there was no evidence to suggest the vaccine would have any side effects or adverse effects on the Protected Party. Moving on to the Protected Party, it was first noted he lacked capacity to make a decision and it was difficult to ascertain his view on the vaccine. The Protected Party was in a care home which had experienced COVID-19 related deaths, he was deemed to be clinically vulnerable and if he contracted COVID-19 there was a chance of death or serious illness. The Protected Party was also unable to comply with the social distancing and hygiene guidance. The Court therefore concluded that the vaccine was safe and it was in the Protected Party’s best interests to receive it.

Whilst the Protected Party was not elderly, the Court declared he should receive the vaccine as he was still vulnerable, albeit not as vulnerable as the Protected Party in the case of Re Fee. This confirms the Court of Protection are more likely to allow a vaccination to be administered where a risk is posed to the Protected Party, and that risk does not have to be overly serious. As always, decisions will be made in the best interests of a Protected Party and to determine such, the Court will weigh up the evidence before them.