We continue to live in a world where the Covid-19 pandemic touches nearly every element of our lives, with plenty of media activity surrounding the current national lockdown, and the rollout of the largest vaccination programme in British history.
Naturally, the speed at which the vaccinations have been developed and approved has attracted some attention, both in terms of the incredible scientific feat that has been achieved, but also by others with some concern as to the reliability of the testing that has been undertaken and the potential side effects of a new vaccine to a still relatively new virus with ever-developing variants.
Throughout the pandemic, one thing has been certain: the elderly, in particular those living in care homes, appear to be particularly vulnerable to the effects of the virus. Understandably, they are therefore a priority group for receiving the vaccine as soon as possible. But what happens if the person themselves doesn’t wish to receive the vaccine, or if they don’t have the capacity to make that decision for themselves? Who determines whether they should or shouldn’t receive the vaccine?
This very question was considered by the courts in a recent case*, centred around an 80-year-old care home resident (‘Mrs E’) sadly suffering from dementia. In early January 2021, it was communicated by the local authority that Mrs E was to be offered a Covid-19 vaccination, however, Mrs E’s son objected. The court was quickly asked to consider whether under the relevant sections of the Mental Capacity Act 2005, it would be lawful and in Mrs E’s best interests to receive the vaccine.
As part of the court process, Mrs E’s GP conducted a brief capacity assessment in which she was asked about both her thoughts on of the coronavirus pandemic (which she could not recall), and her wishes in regard to being vaccinated, to which she responded, “whatever is best for me”. Having established that Mrs E was unable to make the decision herself, the judge then moved on to consider whether receiving a Covid-19 vaccination was in her best interests.
Weighing up that Mrs E, prior to her diagnosis of dementia, had willingly received a flu vaccine, as well as a swine flu vaccine, he determined that when Mrs E had capacity, she had chosen to be vaccinated in line with public health advice. She had also placed her trust in the GP by stating she would want what was best for her.
As a ‘person interested in Mrs E’s welfare’, the judge had to take into account the views of Mrs E’s son who had raised the objection to the vaccination. He was deeply sceptical about the vaccine, the speed at which it was authorised, whether it had been adequately tested, and also whether his mother’s true wishes and feelings had been sufficiently canvassed. Nevertheless, Mrs E’s son also gave evidence that he didn’t object to the vaccination in principle: just that he did not consider now was the right time for his mother to receive it.
The balance that the judge decided he had to consider on Mrs E’s behalf was the real risk to her life from the virus, and the unidentified possibility of an adverse reaction to the vaccine. The judge concluded that in Mrs E’s circumstances, particularly taking into account the various vulnerability factors such as her age, ongoing medical problems and the fact that the care home in which she was resident had recorded positive cases of Covid-19, there would be a “real and significant risk to her health and safety were she not to have the vaccine”. As such, he declared that it was in her best interests to receive it as soon as practically possible.
There is no mention of a Lasting Power of Attorney in this case, but this serves as a shining example of a situation where, if Mrs E had made an LPA for her health and welfare decisions before losing capacity, she would have had a named attorney, be it her son or another person of her choosing, who could have made this decision on her behalf. In turn, these proceedings and the resulting delay in administering the vaccine to Mrs E might have been avoided.
It also serves as a reminder to all of us that it is important to consider whether there are any circumstances relating to medical treatment where you would have a strong feeling either way; for example, whether you would want to be vaccinated in line with public health advice or not.
If so, these circumstances should be recorded appropriately within an LPA well in advance of any potential loss of capacity, so that the subjective nature of the ‘best interests’ test being applied by your attorney, or by medical professionals, on your, or your client’s behalf, could be avoided.
Libby Holding is legal services director at APS Legal & Associates – part of The SimplyBiz Group