Court Overrides Family Wishes Regarding Covid Vaccine
06/17/2021
If you ever doubt how far modern medicine has come in the past fifty years, remember that although the Coronavirus has resulted in a significant number of deaths, never before has humanity developed a vaccine to deal with a global pandemic in real-time. It is extraordinary that scientists developed an effective vaccine in less than a year, and, despite a few squabbles, that governments have been able to co-operate and vaccinate their populations so swiftly and effectively.
Of course, even in 2021 not everything is running smoothly – humans are too complex for such a rapid pandemic response to happen without some conflict. One of the biggest challenges facing healthcare professionals and local authorities relates to persuading the families of mentally incapacitated persons that the vaccine is safe for their vulnerable loved ones.
What happens if a family member refuses to consent to an elderly/vulnerable relative receiving the Coronavirus vaccine?
The recent case of V,Re (also known as SD v Kensington and Chelsea RLBC) [2021] EWCOP 14, [2021] EWCOP 14 ruled on one such challenge facing a local authority – that of a daughter who objected to her elderly mother receiving the Coronavirus vaccine. The mother, who was in her 70s and suffering from a form of alcohol-related brain damage, lived in a care home. The daughter, who had the best interests of her mother in mind, told care home staff that her mother was not to receive the Coronavirus vaccine because of concerns around the safety of the drug and the fear of possible side effects.
On the day that the care home residents received the vaccine, a carer informed the mother that she would not be receiving her jab. On 12 January 2021, the care home informed the Respondent local authority of the situation. The Respondent spoke with the mother’s GP, who told them that it was in her best interests to be vaccinated.
The daughter applied, pursuant to the Mental Capacity Act 2005, for a declaration that it would not be lawful or in the best interests of her mother to be given the COVID-19 vaccine. She argued that if her mother had capacity, she would refuse the vaccine.
The Respondent argued the Coronavirus vaccines had been thoroughly tested and were fully approved for use. It stated that the risk of side effects had been considered by the mother’s GP and that her residence in a care home, age, and health meant that she was at high risk of contracting Covid and becoming seriously unwell.
In refusing the daughter’s application, the Court of Protection stated that given the mother was over 70, overweight, suffered from dementia resulting from her Korsakoff's syndrome, and lived in a care home meant that she had a high chance of catching Coronavirus and suffering from severe sickness and even death. Due to short-term memory problems, the mother could not follow strict hygiene and social distancing measures.
It was noted that the mother had received a flu vaccination for many years, and she had followed her doctors’ advice when she had full mental capacity. Now that she was an incapacious adult protected by the framework of the Mental Capacity Act 2005, the Court was required:
“…to identify best interests for itself, surveying the entire canvas of the available evidence. Strongly held views by well-meaning and concerned family members should be taken into account but never permitted to prevail nor allowed to create avoidable delay. To do so would be to expose the vulnerable to the levels of risk I have identified, in the face of what remains an insidious and highly dangerous pandemic virus.”
The Honourable Mr Justice Hayden, Vice President of the Court of Protection, concluded:
“What it is important to emphasise here, as in so many areas of the work of the Court of Protection, is that respect for and promotion of [the mother’s] autonomy and an objective evaluation of [the mother’s] best interests will most effectively inform the ultimate decision. It is [the mother’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.”
In summary
Any decisions concerning the administering or discontinuation of medical treatment where loving family members object are difficult for the Court and the medical staff/local authorities involved. All parties are motivated to do what is right for the vulnerable person. This decision will provide clarity for local authorities facing family objections to elderly/vulnerable relatives, who are protected by the Mental Capacity Act 2005 framework, receiving the Coronavirus vaccine.
