The recent Court of Protection judgement in a Clinical Commissioning Group v DC  EWCOP 2 provides further guidance on decision-making about whether Covid-19 vaccination is in a P’s best interests. His Honour Judge Burrows considered recent case law concerning vaccination and identified a number of factors to inform the approach to best interest decision-making.
The Court of Protection was asked to decide whether a person lacking capacity, P, should receive a course of Covid-19 vaccination. An application was made by the CCG following a dispute as to P’s best interests between clinicians and P’s family.
The application concerned DC, a 20 year old man living in residential care. DC has a profound learning disability and suffers from a range of physical health conditions, including issues with his lungs that often lead to respiratory illnesses requiring hospital admission. DC is unable to communicate verbally and it was agreed that he lacked capacity to make a decision regarding vaccination.
The CCG believed that it was in DC’s best interests to receive two doses of the Covid-19 vaccine and any relevant booster vaccine in accordance with available NHS guidance for his age group. The Official Solicitor was invited to become DC’s litigation friend and also reached the conclusion that it was in DC’s best interests to receive the vaccine. DC’s parents were opposed to him receiving the vaccine.
Dr H, DC’s GP gave evidence at the hearing on behalf of the CCG. Dr H explained that he is not an expert in vaccination but had considered NHS guidance informed by the Joint Committee on Vaccination and Immunisation and Chapter 14a of the Green Book on Vaccination. DC is at a high risk of serious consequences if he contracts Covid-19. In particular his respiratory illnesses, profound learning disability and residence in a care home place him in a high risk category. Dr H concluded that having considered available guidance, he believes that the adverse risks of the vaccine are greatly outweighed by the protection it offers towards a virus that could be “catastrophic” for DC.
DC’s father gave evidence at the hearing. He had also considered the literature available and in his view, felt that the vaccine is experimental. He considers that the current Covid-19 vaccines have not gone through the usual tests and regulatory scrutiny they would have in normal times and he was not satisfied that they are as safe and efficacious as people are led to believe. Specific concerns were highlighted over respiratory, vascular and neurological issues that may arise and the risk of blood clots. DC’s mother also felt that vaccination was not in DC’s best interests as she believed that administering the vaccine might trigger ill health for DC from which he would not recover.
The law and analysis
His Honour Judge Burrows identified the two options before the Court; for DC to receive the Covid-19 vaccine in accordance with the CCG’s care plans, or for DC not to receive the Covid-19 vaccine. The Judge recognised that the Court is able to probe the option(s) being put forward to explore whether there may be other options available that will be better for P. Such options may be limited by what professionals are willing to provide.
In a number of cases considering Covid-19 vaccination, there has been discussion as to whether independent expert evidence should be obtained. In this case, His Honour Judge Burrows was invited to instruct an independent expert to “fine-tune” the risk vs. benefit analysis. In declining the request, the Court here was influenced by the fact that it would entail a further adjournment of a number of weeks and that no specific discipline had been identified.
For best interests, the starting point was section 4 of the Mental Capacity Act 2005, which sets out the criteria to consider when determining best interests. When interpreting the criteria, His Honour Judge Burrows considered a number of recent cases, several of which concerned vaccination.
Below is a summary of some of the factors that His Honour Judge Burrows identified as being relevant for consideration:
- Whether P will regain capacity – for DC there was no prospect of this.
- Best interests must be considered in the widest sense; not just in a narrow medical sense.
- It is more difficult for a decision-maker to put themselves in the place of P and ask what P’s attitude to the treatment would likely be where P has never expressed any opinions or wishes from which the Court can confidently predict what they would decide.
- The Court should consider the views of family members. In doing so, they must be considered with P’s interests at the centre. For DC, His Honour Judge Burrows was sure that if he were able to make decisions for himself, he would be influenced by his parents: he would challenge the figures, he would investigate them and he would discuss them.
- The national context and prevailing Covid-19 situation is also important. His Honour Judge Burrows recognised that in the case of E (Vaccine) Mr Justice Hayden was influenced by the fact that in January 2021 the UK had one of the highest death rates in the world and if P contracted the virus her prospects would “not be propitious”.
- One relevant factor is whether there would be an expression of altruism in P’s decision. It was appropriate to reflect on whether DC would wish to consider the effect of the decision on the welfare of others – i.e. whether he would act like a “responsible citizen”, given that the vaccine is designed to prevent the spread or at least the rapid spread of a virus. His Honour Judge Burrows concluded a reasonable person with high risk is likely to be inclined to receive the vaccine for altruistic reasons.
- In terms of vaccine efficacy and safety, His Honour Judge Burrows recognised Mr Justice Hayden’s comment in an earlier case that:
“…it is not the function of the Court of Protection to arbitrate medical controversy or to provide a forum for ventilating speculative theories. My task is to evaluate [P's] situation in light of authorised, peer reviewed research and public health guidelines and to set those in the context of the wider picture of [P's] best interests".
He also however recognised that there is a distinction between the Covid-19 vaccines and the “older, more established vaccines” in that they are technologically new and licensing has been accelerated. His Honour Judge Burrows noted that the clinical trials that would normally take many years before a vaccine is approved have been truncated, for very good reasons, but truncated nonetheless which required reflection.
- His Honour Judge Burrows endorsed the approach taken in cases involving children and the exercise of parental responsibility regarding vaccination, where absent a “credible development in medical science or peer reviewed research evidence indicating a significant concern for the efficacy and/or safety of the vaccine or a well evidenced medical contraindication specific to the subject” patient, the Court is guided by Public Health England and the Green Book.
- A best interest decision should include consideration of how the vaccine would have to be administered. His Honour Judge Burrows noted that where the use of force would be required to facilitate vaccination, the best interests balance might be tilted against vaccination even though it would reduce P’s risk of harm.
In relation to timescales, there was criticism from the Court for the “very substantial” lapse in time since DC’s need for the vaccine was first identified by the CCG and the matter reaching the Court, particularly given that DC is a highly vulnerable person for whom infection with COVID-19 could be “extremely serious”. His Honour Judge Burrows noted that this seemed to be a common theme in recent cases, and stressed the importance of bringing matters of this kind to Court urgently once it becomes clear that there is a dispute.
Placing DC at the centre of decision making and taking into account the relevant factors and evidence before the Court, His Honour Judge Burrows found in favour of DC receiving the Covid-19 vaccine. He was satisfied on the basis of the CCG’s evidence that the risks of vaccination did not outweigh the advantages. He noted that a key reason in allowing the application was that he could see it having a positive effect on DC's enjoyment of life, by allowing him to be more involved in the life of his care home and with his parents. If DC were able to make a decision for himself, His Honour Judge Burrows was satisfied that this would be a magnetic factor for him.
An application was made by DC’s parents for permission to appeal but this was refused.
The judgement in this case provides useful guidance on factors to consider when making a best interest decision for an individual lacking capacity about Covid-19 vaccination. It also stresses the importance of public bodies making applications to the Court of Protection in a timely manner where there is a clear dispute as to best interests.
This article was written by Beth Warner, Solicitor.