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Legal case

COVID-19 vaccinations, in whose best interests?

SD v Kensington and Chelsea RLBC [2021] EWCOP 14 [2021] 2WLUK 305

Introduction

This case arose from a welfare application to the Court of Protection, regarding V, a lady in her early 70s, who was living in a care home. The applicant, SD, was V’s daughter who sought a declaration that it would not be lawful or in V’s best interests to administer V with a vaccine, against COVID-19, on the basis that this would be contrary to what, SD contends, would be V’s wishes. The local authority opposed the application.

Background

V had been living with Korsakoff’s syndrome, a form of alcohol-related brain damage, for over a decade and was residing in a care home in the South-West of England. The staff had gone to enormous lengths to protect the residents and the care home had survived the COVID-19 pandemic without there being a single known case. On 13 December 2020, SD, V’s daughter contacted the care home to say that her mother was not to receive the new COVID-19 vaccine, or indeed, any other vaccine. SD told the care home that she did not think the UK vaccines had undergone sufficiently rigorous safety trials and, in her view, there were unacceptable risks of side effects which contraindicated the taking of the vaccine. On the day the care home was set to vaccinate its residents, V had followed the other residents into the room where the vaccinations were being dispensed. V knew nothing of her daughter’s position. The care staff had to tell her she was not to receive the vaccine. On 12 January 2021, the care home informed the local authority of the situation and in late January 2021, SD spoke with Dr. W, V’s general practitioner, who was clear that he thought it was in V’s best interests to receive the vaccination. On 24 January 2021, SD made the application to the Court of Protection with the objective of preventing V from having the vaccine.

The court heard from SD, whose position was that her mother would not have wanted to receive the vaccine. SD believed V’s compliance with the flu vaccinations in the past had been due to her deferential nature and not her desire to be vaccinated. SD also provided the court with abundant material on why she felt the UK vaccine was unsuitable and why she preferred ivermectin, an anti-parasitic drug, produced by an organisation based in the USA whom she believed had trialed the drug with success. Counsel for the local authority argued that SD’s evidence was eclipsed by the fact that both the Pfizer/BioNTech and the Oxford-AstraZeneca vaccine had been rigorously tested and approved by the Medicines and Healthcare products Regulatory Authority (“MHRA”). The minimal risk identified of any common side effects were taken into account by V’s GP, when making the recommendation that it would be in her best interest to receive the vaccine, and as a resident in a care home V was at significant risk of contracting the virus and of becoming seriously ill or dying.

Legal framework

It was not disputed that V lacked the necessary capacity to make the decision herself and in deciding whether to grant the declaration sought, the court considered the applicable factors at section 4 of the MCA 2005. In addition, Mr. Justice Hayden also considered the concept of a risk matrix, which he had raised in an earlier case Re E (Vaccine) [2021] EWCOP 7 at [17]. Believing that the risk matrix could be applied in this case as well, he set out the risk matrix as follows;

  1.  1. If V were to become infected with Covid-19, she possesses a number of characteristics which make her particularly vulnerable to severe disease or death. She is 70 years of age, she carries significant excess weight, and she has dementia resulting from her Korsakoff’s syndrome;
  2. Most importantly, she lives in a care home. It is an inescapable fact that in the UK, more than a quarter of the deaths due to Covid-19 have occurred within care home settings;
  3. V’s particular care home, by virtue of its specialism, deals with a unique category of risk. V has been described as ‘a wanderer’, though far less frequently of late. In consequence of her short term memory problems, it is impossible for V to follow the principles of social distancing and preventative hygiene measures. Evidence from Mr. A demonstrates that she is very sociable, and it would not be feasible within the setting of this care home for her to self-isolate if she contracted Covid-19;
  4. Every member of staff, and every other resident of V’s care home, has now been vaccinated…. Accordingly, just as the risk to all other residents of the home diminishes, V’s risk of contracting the virus will elevate as the outside world gradually returns” [para 22].

Mr. Justice Hayden weighed the evidence on V’s prior wishes and feelings but did not accept SD’s contention that V was deferential to the medical profession and had merely followed the herd when previously receiving her flu vaccinations. Nor did he accept SD’s views of the risks she associated with the UK-authorised vaccines. He accepted that SD was doing what she felt to be the right thing but felt that ‘although strongly held views, by well-meaning and concerned family members, should be taken into account they should never be permitted to prevail’,[26]. In the face of the risk posed, Mr. Justice Hayden preferred the views of V’s carers, her GP and the local authority, who were unanimous in their view that it was in V’s best interest to receive the vaccine.

Conclusion

Mr. Justice Hayden found that in the circumstances, the risk to V’s life and health, if she were not to have the vaccine, would be unacceptably high and that it was therefore in her best interests to receive it.

What are the practical implications of this case?

Mr. Justice Hayden made it clear that these vaccine issues should be treated as urgent. It took nearly a month for the application to come before the court and he considered this delay to be unsatisfactory.

“When an issue arises as to whether a care home resident should receive the vaccination, the matter should be brought before the court expeditiously, if it is not capable of speedy resolution by agreement.”

Mr. Justice Hayden was also at pains to make it clear that there is no presumption that vaccination will always be in the patient’s best interests, emphasising that it is important to remember that P’s autonomy must always be respected and promoted.

“It is P’s voice that requires to be heard and which should never be conflated or confused with the voices of others, including family members however unimpeachable their motivations or however eloquently their own objections are advanced.”

Finally, the best way to ensure P’s autonomy is to conduct an objective evaluation of P’s bests interests before considering the risk matrix and balancing P’s views against the risks P faces.

It is interesting to note that for some cases it is the ethical issues dominate the court’s reasoning whereas in others, which may also raise moral issues, the issues have been dealt with on a more traditional legal basis using principles of precedent. In this judgment Mr Justice Hayden has taken a rights-based approach to his decision-making, focusing on the individual’s right to autonomy rather than the more utilitarian / egalitarian view, that it is in the public interest for everyone to be vaccinated, thereby protecting the individual from claims that “harming” her is justified in the interests of society or the interests of others.

Whilst the courts have previously been willing to accept that ethical issues can play an important role in deciding how the court will reach a decision, such an approach can prove difficult and as such the judiciary has often asserted that complex moral issues or matters of significant public interests are better resolved in Parliament than in the courts, (Hoffmann LJ, Airedale NHS Trust v Bland [1993] 1 All ER 821, [850] [878]). This decision may therefore be an indication that the courts are leaving it to Parliament to determine whether everyone is to be vaccinated, or in turn, to carry vaccination passports.

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