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Court of Protection | Covid-19 vaccines and best interests

With the 19th July marking “Freedom Day” when most remaining legal coronavirus restrictions are lifted due to the successful roll out of the NHS vaccination programme, in certain circumstances controversy continues over the benefits of being vaccinated versus the risks.

The Court of Protection has recently heard cases dealing with the issue of whether it is in a person’s best interest to receive the vaccine on a number of occasions.  We have highlighted a few of the cases below:

CR, Re [2021] EWCOP 19

This case heard by HHJ Butler was to determine if it is in CR’s best interests to have a vaccination against Covid-19.  CR is 31 years old and has been diagnosed with a lifelong severe learning disability, autism, and epilepsy. CR is classed as “clinically vulnerable” and falls within the priority group for a vaccination. It was agreed by all that CR lacked capacity.  The professionals involved in CR's care all shared the opinion that it is in his best interests to have the vaccination.

SR, CR’s father, objected to the vaccination being given to his son for several reasons, including concerns surrounding the speed with which it had been developed and approved.  The judge heard that “the autism which CR has, is attributed by SR to an MMR vaccination that he received at birth.” Although CR’s current place of residence, a care home, did not have any Covid-19 cases at the time of the hearing, medical evidence stated that should CR contract Covid-19 the effects “would be significant and serious, with a risk of severe ill health and possibly death.”

HHJ Butler could not determine what CR’s views or wishes might be as his incapacity had been lifelong. The judge summarised that SR’s views are genuinely held and his objections were not intrinsically illogical. However, the reasons for opposing the administration of the vaccine “have no clinical evidence base.” From an objective perspective, the discredited theories linking the MMR injection to autism had “no basis in science.” HHJ Butler concluded that the declarations sought by the CCG would be granted but with the important caveat that the Applicant was not authorized to use physical intervention against CR in order administer the vaccine.

The full judgment can be read here 

SD v Royal Borough of Kensington And Chelsea [2021] EWCOP 14

This recently decided case relates to another decision over whether a Protected Party being vaccinated against Covid-19 was in their best interests.

P’s daughter sought a declaration that it would not be lawful or in P’s best interests to administer her mother with a vaccine against Covid-19, or indeed, any other vaccine, on the basis that to do so would be contrary both to P’s best interests and to what the daughter contended would be her wishes.

P is a lady is a lady in her early seventies who has lived in a care home for the last 10 years due to suffering from Korsakoff’s syndrome.   All the other residents and staff at the care home had received the Covid-19 vaccine. P's daughter was however, of the view that her mother should not receive it because of the daughter's concerns about the speed at which the vaccine had been developed and approved.   The court therefore had to determine whether it was in P’s best interests to receive the vaccine or not.

Hayden J considered the matrix of risk as addressed in Re E (Vaccine) [2021] EWCOP 7. This included considering the risk to P’s health and life if she were to contract the virus without being vaccinated in addition to the impact it could have on the other residents and carers of the care home where P resided. Taking this into account Hayden J considered that the risk to P’s life would be unacceptably high if P was not vaccinated.

Hayden J further confirmed that in similar cases like this then there would be a strong draw towards vaccination as likely to be in the best interests of P however, this will not always be the case, nor even presumptively so.   He concluded that ‘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’.

The court concluded that the risk to P’s life and health, if she were not to have the vaccine, would be unacceptably high and that it was in her best interests to receive it.

For the full judgment, please click here.

If you have any concerns regarding a loved one who is unable to make decisions for themselves, contact our Court of Protection team on 01926 354704 or email:

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