Court of Protection rules Covid-19 vaccination of 86 year old patient with dementia not in her best interests
26th May, 2021
This case concerned "SS", an 86 year old woman residing in a care home. An Application to the Court of Protection was made under s21 A of the Mental Capacity Act 2005. SS had a diagnosis of dementia and objected to her placement in the care home. It was agreed she lacked capacity to make relevant decisions.
Proceedings were issued in the Court of Protection in July 2020 relating to what was in SS best interests in respect of residency and care. An interim Application was brought before Mr Justice Hayden regarding concerns about SS refusing the Covid-19 vaccination.
The medical evidence was that SS lacked capacity to consent to the vaccination. Her GP advised that if a best interests meeting was to take place then he would support vaccination as being in SS’ best interests, however, the GP considered that the administration of the vaccine would be challenging. It was considered that restrictive physical force would be required to protect the patient and staff from coming to harm.
The CCG submitted that the Court should conclude that vaccination was in SS’ best interests. The Local Authority and the Accredited Legal Representative for SS both submitted that it was not in her best interests to have the vaccine.
It was considered by Mr Justice Hayden that the risk to SS from Covid was low, as all but one resident in the care home had been vaccinated and she received no visitors.
The evidence before the Court was that SS would likely have refused the vaccine, had she had capacity to do so. She had refused vaccinations in the past when she had capacity. It was considered that if the vaccination was given against SS’ will that she would be extremely resistive and a carer advised that whoever was restraining SS would need to be a martial arts expert. It was thought that restraint would be distressing for SS and would damage the fragile trust that had been built between SS and her carers.
The Court stated that there was a considerable body of case law setting out the weight to be given to the wishes and feelings of an individual who lacked capacity and noted that these must be a significant factor to which the Court must pay close regard. The weight that must be attached to a patient’s wishes and feelings would always be fact and case specific.
Mr Justice Hayden stated that he agreed that restraint to deliver the vaccine would damage the relationship between SS and her carers and ruled that, when evaluating the welfare of SS in the broader sense, it could not be said that vaccination of SS was in her best interests.
You can access the Judgment here SS v London Borough of Richmond Upon Thames & Anor [2021] EWCOP 31 (30 April 2021) (bailii.org)
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