Court of Protection approves Covid vaccine for man lacking capacity, but declines to authorise booster dose without another hearing

A Court of Protection judge has approved the giving of the first and second dose of a Covid-19 vaccination to a man who lacks capacity, but has declined to authorise in advance the administration of a booster dose.

The case of A, Re (Covid-19 vaccination) [2021] EWCOP 47­ concerned AD, a man in his thirties, who lives in supported living with a 24/7 package of care and support from a private care provider, commissioned by the local authority, not by the applicant clinical commissioning group.

AD has diagnoses of moderate Learning Disability, Down's Syndrome and Autism. He is clinically overweight, with an estimated BMI of 31. He is of BAME heritage.

Her Honour Judge Brown said the evidence before the court was that these factors made AD 'clinically extremely vulnerable' to Covid-19. “AD experiences significant health anxiety and finds health interventions distressing: he consistently refuses to engage with them.”

AD is also unable to comply with social distancing measures or wear PPE such as a mask, and he is a sociable person.

All those involved with AD agreed that he lacks capacity to make a decision about the Covid-19 vaccination and any medication to facilitate its administration: as well as any anxiolytic and/or pain relief medication.

AD has a history of refusing healthcare and intervention and will say “no” when introduced to a healthcare professional. Staff members had attempted to go through the easy read social story concerning Covid-19 virus and the vaccine. It was noted that AD had limited capacity but clearly objected to the injection and would shake his head to verbalise “no”.

His mother, Mrs C, strenuously opposed the administering of the Astra-Zeneca vaccine, or any Covid vaccine. She considered amongst other things that:

• The force or restraint would be too traumatic and destroying for him
• It would cause him physical or psychological damage, a loss of dignity and emotional and mental trauma
• He had had some painful experiences at his previous care home. He had come a long way to restoring his identity and was able to trust the care provider’s staff
• It would be an infringement of various of his rights under the European Convention on Human Rights
• It would amount to unlawful use of restraint and a potential claim for assault, unlawful deprivation of liberty and scrutiny from regulators

Mrs C also made various claims in relation to the vaccine, including that it did not guarantee prevention of Covid-19 or stop transmission, it was not proven safe, the incidence of adverse side effects was very high, Vitamin D and C were better treatments, and in the long term people who had taken the vaccine would fall very sick and die.

The CCG’s application was supported by AD’s father, his social worker, a Senior Community Learning Disability Nurse, the operations manager of the care provider, AD’s Independent Mental Capacity Advocate, and AD’s GP.

Counsel for the CCG submitted that many of Mrs C’s arguments were “well-known, extraordinary and dangerous misinformation concerning the Covid-19 vaccine, of the kind which is rife online”.

The Court of Protection judge declared that “AD lacks capacity to make decisions in respect of the administration of the Covid 19 vaccination, that it is lawful for AD to be given two doses of the Astra-Zeneca Covid 19 vaccine in accordance with the care plan (no use of force) but refused the application to allow for the administering of the booster in a few months' time, without agreement or further application to the court”.

In her ruling, which was handed down on 7 May 2021 and was published last week on Bailii, Honour Judge Brown said: “The Covid-19 pandemic has caused untold grief, distress and worry, for so many families and individuals in many different situations. I entirely understand why there is genuine and legitimate concern from some, about the administering of a new vaccine to combat a new virus. People legitimately and in good faith, raise questions about its efficacy and possible side effects. I approach Mrs. C's concerns with profound respect and deep compassion. I accept that she genuinely holds these concerns and is acting out of what she considers, to be the best interests of her child.”

Counsel for the CCG submitted to the court that under s.4(7) of the MCA, AC's views must be taken into account when determining AD's best interests, but they were not determinative.

The judge said the court reminded itself of the dicta, per Hayden J. in SD, at paragraph 26: "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".

HHJ Brown said: “Similarly, AD's opposition to healthcare interventions must be taken into account, in that the administration of the vaccine will be against his wishes and feelings: but his wishes and feelings are not determinative. These factors must be weighed in the balance, with all the other evidence about the risks to AD of contracting Covid-19 versus the risks to him of carrying out the vaccination in accordance with the proposed Care Plan.”

The judge she had been very impressed with the care that the professional team working with AD had taken to consider his particular case and his need for the vaccination.

“When the balance of evidence from all those interested in AD's welfare is considered, in my judgment it is overwhelmingly in favour of him receiving the vaccine,” she said.

“I am satisfied that on balance, it is in AD's best interests to be administered the Astra-Zeneca two shot vaccine. I am further impressed by the careful thought that has gone into how that vaccine can be administered without causing AD distress. I note the careful consideration of this plan by the Official Solicitor on behalf of AD. In my judgment, it is in AD's best interests for the vaccine to be administered in accordance with the care plan which does not involve the use of force.”

HHJ Brown said that in the event it was not possible to administer the vaccination to AD successfully and a more restrictive care plan was proposed, the matter should be brought before the court for further directions.

The CCG’s application for approval of the administration of the booster dose was opposed by the Official Solicitor on behalf of AD, and by Mrs C.

HHJ Brown agreed with the submissions on behalf of the Official Solicitor. “The guidance and medical advice may have changed by the time any booster may be required. Any individual would wish to consider whether to have the booster at the time that it is available and those representing AD should be afforded the same opportunity. I respectfully accept the submission of the Official Solicitor that it would represent ‘overreach’ to sanction administration of the booster at this time.”