SS v London Borough of Richmond upon Thames & South West London Clinical Commissioning Group [2021] EWCOP 31

In this judgment Hayden J dealt with the issue of a Protected Party who no longer had capacity to make a decision on whether to have the Covid-19 vaccine but had a history of ‘strongly and consistently expressed views’ relating to vaccination and medical intervention.

SS is an 88-year-old woman with a diagnosis of dementia. SS resides in a large care home. Unfortunately, SS has very little recollection of the modern times and instead believes that she still lives with her now long deceased parents. It is considered by P’s carers that in her own mind SS is living at some point in the late 1940’s or early 1950’s. P’s care home had been significantly impacted by the Covid-19 pandemic.

SS had been assessed as lacking capacity to make the decision regarding consenting to the Covid-19 vaccination.

Steps were taken to evaluate SS’s belief structure, assess the risk to SS and consider what would be in SS’s best interests.

When considering SS’s belief structure, it was noted that SS had initially been compliant with the provision of medical treatment when she first arrived at the care home. However, since reading an article that medicine ‘did more harm than good’, SS had become almost entirely non-compliant with any attempted medical intervention. Further consideration of SS’s medical records showed that she had refused seasonal influenza and pneumococcal vaccines since 2002. However, this was considered in the context of a general history of co-operation.

When considering the risks to SS from not having the vaccine, it was noted that there remained an increased risk that SS could contract Covid-19 in light of the slow increase of visitors and that there were still some care staff who had not been vaccinated, either because of pre-existing medical conditions or personal choice.

When considering SS’s best interests the Court noted that, if SS had been capacitous, there was significant evidence to conclude that she would have refused the vaccine.

Options were provided in respect of vaccinating SS and these included either sedating SS or telling SS that her father (who is long deceased) recommend that she have the vaccine. Whilst the latter had been used for more trivial issues, the Court considered that it would be disrespectful to SS in this circumstance and could jeopardise SS’s fragile relationship of trust with her carers.

The Court held that when considered that ‘a determination of “best interests” in this context however is, for all reasons discussed above, not to be confined to the epidemiological; it requires evaluating welfare in the broader sense’. In this case, it could not be considered to be in SS’s best interests.

The full judgement can be read here

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