A fundamental right of patients in healthcare is the right to consent and to refuse treatment.

When the patient lacks legal capacity to make decisions, it is common practice for a legally appointed substitute decision-maker to decide on their behalf. However, determining what is in that person’s best interests can be difficult when family hold their own strong views about the matter. This issue was recently considered in three similar cases in English Courts.

All cases relate to a next of kin’s refusal to give consent for their relative, who lacked legal capacity to make decisions, to receive the Covid-19 vaccine. Primarily all three had similar concerns regarding the vaccine with some slight variations. In each case surveying the whole canvas of evidence available, the courts made a declaration that the person should receive the vaccine despite strongly held family views to the contrary. The first of these cases is reviewed here.

Mrs E lived in a care home, was 81 years of age had schizophrenia and dementia. Upon learning of the home’s offer for her to receive the Covid-19 vaccination, her son (W) refused to give consent. This led to a court application by her legal representative for a declaration under the Mental Capacity Act 2005 that it would be lawful and in Mrs E’s best interests to be vaccinated.

Whilst W did not disagree with the vaccine in principle, he held the view that it was not the right time for his mother to receive it. This objection was based on his ‘scepticism about the efficacy of the vaccine, how quickly it had been developed, whether it had been adequately tested on the cohort to which his mother belongs, and, importantly, whether his mother’s true wishes and feelings have been canvassed’ (para 15).

The risk matrix: The judge for the case, Jayden J noted that Mrs E was living in a country with one of the highest death rates per capita in the world, due to Covid-19. He further noted the risks that compounded Mrs E’s vulnerability: she was in her 80’s, lived in a care home with confirmed positive cases of Covid-19, had Type II diabetes, lacked capacity to understand how Covid-19 can be transmitted and like many others in her position, would be challenged by the rigours of social distancing restrictions.

Jayden J acknowledged the global context of the virus and the particular risks in aged care homes: “I recognise that the world faces the challenge of an alarming and insidious virus. Nobody can possibly have missed the well-publicised and statistically established vulnerability of the elderly living in care homes… I take judicial note of the particularly high risk of serious illness and death to the elderly living in care homes (para 17)’.

Jaydyn J was satisfied that Mrs E lacked legal capacity to make decisions about her health and respected W’s right to hold his own views. Nonetheless, he also made it clear that it was Mrs E’s approach to life that was to be considered in this process and not that of her son. Hence, his role was to as far ‘… as is reasonably ascertainable, [determine] 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’ (para 13).

It was noted that prior to her diagnosis of dementia, Mrs E had willingly received influenza vaccines and in 2009, the vaccination for swine flu. In Jaydyn J’s view, this indicated that if Mrs E had capacity and was given the choice, she would choose to be vaccinated in line with the public health advice and would accept the offered Covid-19 vaccine. And so, given that there was a ‘real and significant risk to her health and safety were she not to have the vaccine administered to her (para 17)” it was declared to be in her best interests to receive the vaccination as soon as possible given the Covid-19 breakout in the home.

In making this finding, Jayden J acknowledged how difficult deciding what is in the patients’ best interests can be for family members where love and concern can obstruct rather than focus objectivity in decision making. However, he was clear that the Court has a protective role – to respect and promote the persons’ autonomy. It must undertake an objective evaluation of what is in the individual’s best interests without confusing the voice of others, no matter how unimpeachable their motivations, with the persons own voice. A position that perhaps mirrors that of health professionals advocating for their patients.

In the court of protection in the matter of the Mental Capacity Act 2005 and in the matter of E [2021] EWCOP 7;

Two other cases on this matter: In the court of protection in the matter of the Mental Capacity Act 2005 and in the matter of V [2021] EWCOP 14; NHS Tameside & Glossop CCG V CR [2021] EWCOP 19

Author
Linda Starr, an expert in the field of nursing and the law Associate Professor Linda Starr is in the School of Nursing and Midwifery at Flinders University in South Australia