Clashing Rights

The Court of Protection recently heard the first case involving a care home resident and the covid-19 vaccination roll out. In Re E (Vaccine): LB Hammersmith and Fulham v W [2021] EWCOP 7, the son of 80-year-old care home resident Mrs E, who was suffering from dementia, schizophrenia and type II diabetes, objected to her receiving a vaccination.

Several other residents of that care home had tested positive – a situation made worse by the inability of patients suffering from advanced dementia to recognise any meaningful social distancing rules or other infection control measures. 

The case brought into clear focus the life-changing decisions being made by healthcare professionals during this pandemic and the ease with which family members seek to object to health and welfare decisions which clearly are in their relatives' best interests. 

Such best interests decisions are being taken every day for those unable to make decisions for themselves due to the onset of mental incapacity. The judge carefully considered what Mrs E's wishes would have been had she been able to decide for herself. For example, her health records showed that prior to her dementia diagnosis, she willingly received the flu vaccine and had also received a vaccination for swine flu in 2009.

The judge said: "I consider the fact that, when she had capacity, Mrs E chose to be vaccinated in line with public health advice, to be relevant to my assessment of what she would choose in relation to receiving the covid-19 vaccine today". In addition, she twice informed the doctor carrying out her assessment that she wanted “whatever is best for me”.

The son was deeply sceptical about the efficacy of the vaccine, the speed of authorisation, whether it has been adequately tested on the cohort to which his mother belonged and, crucially, whether her true  wishes and feelings had been canvassed. 

It was right that his views were considered and the court acknowledged he was entitled to such views. However, it was clear that he was considering his own views and not those of his mother, whose particular circumstances posed a real and significant risk to her health and safety were she not to have the vaccine.

The judge made a declaration under section 15 Mental Capacity Act 2005 (MCA) and advised that she should have the vaccination as soon as practically possible.

Clash of rights

Having good, reliable evidence of a person's prior expressed wishes and beliefs is key in the event of a dispute and is illustrative of the care with which the Court or Protection ensures the person is central to the court process. 

The statutory principles in the MCA aim to protect people who lack capacity and help them take part, as much as possible, in decisions affecting them. They aim to help not restrict or control their lives. The MCA was established to move away from a paternalistic overly protective process to one where the person themselves is at the centre of the decision-making process. 

It was clearly shown in this case that the judge took into account Mrs E's wishes, the views of her son, and the particularly high risk of death posed by covid-19. 

An interesting debate to be had is the weight to be put on the views of competing parties. Should family members be able to influence best interests decision-making? If the views of the person at the centre of the case are clear from evidence of past behaviour, their previously expressed views and their knowledge of and trust in the clinician assessing them, what weight can be put on an aggrieved family member with differing views? 

The other care home residents who had the vaccination would say their autonomy and fundamental right to life under the Human Rights Act 1998 had been put at a substantial risk if Mrs E continued to live at the home without being vaccinated. Fortunately, given Mrs E's past behaviour and views, there was no clash between the right of a care home resident to refuse the vaccine and the human rights of others in the care home (who would otherwise be at risk from an unvaccinated resident), but it is unlikely this will be the last such case. 

A more difficult decision will be presented where a resident (without capacity) has a history of refusing vaccines and medical intervention. 

Ann Stanyer is a partner at Wedlake Bell wedlakebell.com