E (Vaccine) [2021] EWCOP 7

This is the first case concerning best interests and the Covid-19 vaccination.

Mrs E is an 80-year-old woman with a diagnosis of dementia and schizophrenia. On 8 January 2021, the London Borough of Hammersmith and Fulham advised Mrs E’s Accredited Legal Representative that she was to be offered a Covid-19 vaccination on 11 January 2021. However, W, Mrs E’s son, objected to this by email dated 10 January 2021, therefore Mrs E did not receive the vaccination. Mrs E’s representatives urgently sought a declaration, pursuant to section 15 of the Mental Capacity Act 2005 (‘MCA 2005’) to the effect that it would be lawful and in Mrs E’s best interests to receive the vaccine at the next possible date.

Mrs E’s GP concluded that she does not have the capacity to determine whether she should receive the Covid-19 vaccine. Acknowledging the informality of the assessment of Mrs E’s capacity to decide whether to receive the vaccine, Hayden J was nonetheless satisfied that it was sufficiently rigorous to comply with section 2 and section 3 of the MCA 2005, stating “evaluating capacity on this single and entirely fact specific issue is unlikely to be a complex or overly sophisticated process when undertaken, for example, by experienced GPs and with the assistance of family members or care staff who know P well.”

In determining what would be in Mrs E’s best interests, in accordance with section 4(6) MCA 2005, Hayden J considered her past and present wishes and feelings, the beliefs and values that would be likely to influence her decision if she had capacity, and any other factors she would be likely to take into account if she were able to do so. Mrs E had previously received the vaccinations for influenza and swine flu, and this time wanted “whatever is best for me”. Hayden J considered this to be relevant to his assessment of what she would choose in relation to receiving the Covid-19 vaccine today.

Mrs E’s son, W, was deeply sceptical about the efficacy of the vaccine, the speed at which it was authorised and whether it has been adequately tested on the cohort to which his mother belongs, however Hayden J was of the opinion that W’s views were more reflective of his own personality rather than his mother’s. Considering the extremely high risks Mrs E faced, as an 80-year-old diagnosed with Type II diabetes living in a care home with confirmed recent positive cases of Covid-19, Hayden J had no hesitation in concluding that it is in her best interests to receive the vaccination as soon as practically possible.

The full judgement can be read here

If you have any questions regarding this summary case law please contact Julie Fitzpatrick here

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