Case law - the covid-19 vaccination and best interests

North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) [2022] EWCOP)

This recent Court of Protection case concerned E, a man in his mid-60s with a diagnosis of moderate to severe learning disability. North Yorkshire CCG applied to the court for an order that it is in the best interests of “E” to receive covid-19 vaccinations. There was no dispute around E’s lack of capacity to decide whether or not to receive the covid-19 vaccinations, however there were claims that E’s disability had been caused by the administration of the whooping cough vaccine. The official solicitor, acting as litigation friend, indicated vaccination was likely to be in E’s best interests however one of E’s siblings, F, strongly opposed the application and did not want his brother to have the vaccine.

In making this decision, the judge must consider the factors set out in section 4 of the Mental Capacity Act 2005 (the MCA), which include E’s past and present wishes and feelings, his beliefs and values that would likely influence his decision if he had capacity and any other factors that he would be likely to consider if he were able to do so. The judge must also take into account the views of anyone named by E as someone to be consulted on the matter in question, anyone engaged in caring for E or interested in his welfare, any donee of a lasting power of attorney granted by the person and any deputy appointed for the person by the court.

In the previous case of E (Vaccine) [2021] EWCOP7 it was made clear by Hayden J that when considering best interests, the focus is on the person receiving the vaccine, rather than the views of others interested in their welfare. F argued that since this judgment, the course of the pandemic has changed and that each individual case will be unique.

Before the application was made or heard, F instructed Dr Eccles to provide an expert opinion on whether E should receive the covid-19 vaccinations. It was noted that Dr Eccles was strongly critical of vaccination and the other parties opposed the admission of evidence from Dr Eccles. Dr Eccles reached the conclusion that E is a person at significant risk from ‘vaccine damage’ and is unlikely to gain any real benefit from it. Mr Justice Poole declined to allow the evidence of Dr Eccles.

Mr Justice Poole decided it was in E’s best interests to receive the covid-19 vaccinations. When making the decision, he applied the principles articulated in the previous case of SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14:

1. The best interests assessment is not confined to evidence of the health benefits and risks of vaccination but involves a review of all the relevant circumstances including those set out at s4(6) and (7) of the MCA 2005;
2. It is not the function of the Court of Protection to “arbitrate medical controversy or to provide a forum for ventilating speculative theories” in relation to the benefits and risks to the health of P from vaccination. The Court of Protection will “evaluate P’s situation in the light of the authorised, peer-reviewed research and public health guidelines.”
3. There may be exceptional cases where P’s condition, history or other characteristics mean that vaccination would be medically contra-indicated in their case but in the great majority of cases it will be in the medical or health interests of P to be vaccinated in accordance with public health guidelines.

The above principles are now very well established and will be applied by the Court of Protection in vaccination cases – covid-19 vaccines and other vaccinations offered under national vaccination programmes.

Should you require any advice or assistance in respect of medical treatment disputes or other issues of mental capacity or best interests, please do not hesitate to contact us on 01616 966 229 or COPEnquiries@stephensons.co.uk and our team of specialist mental capacity and Court of Protection solicitors may be able to assist. Legal aid funding is available subject to eligibility.

Jessica Hobro, graduate paralegal in the Court of Protection and community care team