COVID-19 Vaccine and Health & Welfare Lasting Powers of Attorney

The decision of E (Vaccine) [2021]

COVID-19 has without a doubt impacted all aspects of our lives at an individual level, whether it’s the way we work, our interactions with family and friends, or just day-to-day activities like going to the local supermarket. The virus has also had a huge impact on our legal system; the courts have had to be reactive in unprecedented times, and the case of E (Vaccine) heard recently in the Court of Protection is no exception to this.

Mrs E was an 80 year old lady with a diagnosis of Dementia and Schizophrenia and had been living in a care home since March 2020. Mrs E was due to be given the COVID-19 vaccine, however her son disputed this and as a result, Mrs E was not vaccinated. Mrs E’s personal representatives sought a declaration, pursuant to section 15 of the Mental Capacity Act 2005 (“MCA 2005”) to the effect that it would be lawful and in Mrs E's best interests to receive the vaccine at the next possible date.

The judge considered the following issues:

(1) Mrs E’s capacity to decide whether she should have the vaccine

The judge considered an attendance note recording a conversation between Mrs E, her Accredited Legal Representative and her GP. Her GP concluded that Mrs E did not have the capacity to determine whether she should receive the vaccine; she had no recollection of previous conversations relating to the virus, nor could she remember the visit to the care home to administer the vaccine. During the call when asked if she would like to receive the vaccine, Mrs E answered "Whatever is best for me. What do I have to do?", a statement she later reiterated.

Although a relatively short and informal assessment, the judge decided that this was sufficiently rigorous to comply with Sections 2 and 3 of the MCA 2005. Mrs E was unable to understand information concerning the existence of the virus and the potential danger it posed to her health. The judge was also satisfied that Mrs E was unable to assess any advantages or disadvantages of receiving the vaccine and that she could not retain information long enough to use it to make a decision. The judge acknowledged that this was a relatively informal assessment, however in the context of the pandemic this was satisfactory. This links to the earlier point that we are in unprecedented times and the law has to be reactive; Mrs E was in one of the most vulnerable circumstances and time was of the essence.

(2) Mrs E's best interests in relation to receiving a Covid-19 vaccination

In order to determine what would be in Mrs E’s best interests, the judge was required by section 4(6) MCA 2005 to consider, so far as is reasonably ascertainable, her past and present wishes and feelings, the beliefs and values that would be likely to influence her decision if she had capacity, and any other factors she would be likely to take into account if she were able to do so. Mrs E had, prior to her diagnosis of dementia, willingly received previous vaccinations. The judge therefore came to the conclusion that had she had capacity, she would have willingly chosen to have the vaccine. The judge also found that Mrs E demonstrated a degree of trust in the medical professionals, demonstrated by her stating she wanted “whatever is best for me” in the attendance note.

By virtue of section 4(7) MCA 2005 the judge also had to take into consideration the views of Mrs E’s son, who was sceptical about the efficacy of the vaccine, the speed at which it was authorised, whether it has been adequately tested on the cohort to which his mother belongs, and, importantly, whether his mother's true wishes and feelings have been canvassed. The judge acknowledged his views but found that they were reflective of his own character, rather than his mother’s character.

Judgement

The judge found that since Mrs E was particularly vulnerable, considering her age, living in a care home with confirmed cases, having Type II Diabetes, and lacking capacity, it was in her best interests to receive the vaccine without delay.

Could things have been different if Mrs E had a Lasting Power of Attorney for health and care decisions?

Mrs E’s case is not only interesting but also reminds us of the significance and importance of Lasting Powers of Attorney for health and care decisions especially where strong convictions on these matters are held. A Lasting Power of Attorney for health and care decisions allows you to give someone the legal power as your attorney to make decisions on your behalf relating to your health and care decisions when you are unable to make those decisions yourself as was the case for Mrs E because of her diagnosis of Dementia and Schizophrenia.

A Lasting Power of Attorney for health and care decisions can also give your appointed attorney or attorneys the power to decide whether to consent to, or refuse, life sustaining treatment on your behalf when you have lost the mental capacity to make that decision yourself.

If Mrs E had a Lasting Power of Attorney for health and care decisions appointing her son as her attorney and which included a power to refuse or consent to life sustaining treatment, the outcome of the application would have probably been different and it is unlikely that the application would have been made. The relevant local authority and care providers would have been compelled to act in line with the instructions from Mrs E’s attorney.

However, Mrs E’s son, acting under such a power would have still had a duty to act in Mrs E’s best interest. An application could have still been made to the Court of Protection by concerned parties to determine whether or not a decision to refuse consent to a vaccine for COVID-19 would have been in Mrs E’s best interest in the circumstances.

It is likely that the Court of Protection would have been less inclined to overrule the decision of an attorney in those circumstances but applications of this nature turn on the facts particular to each application.

Should you need advice or guidance in relation to Lasting Powers of Attorney or Court of Protection applications, Rollits’ Private Capital team are here to help. Please call us on 01482 323239 or 01904 625790

Suzgo Kaluluma & Lily Dobson

Posted on: 03/02/2021

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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