By Astral Heaven, 4th May 2021
In the hearing I observed before Mr Justice Hayden (case number COP 13498835, on 30th April 2021), a decision was made that it was NOT in the person’s best interests to receive the Covid 19 vaccination. All previous judgments seem to have been in favour of vaccination, so this is a significant decision.
Part of my professional role as Deprivation of Liberty Safeguards and AMHP Manager for a local authority involves supporting others to understand and apply the Mental Capacity Act 2005 and I was involved last year in writing guidance for our local care homes on making best interests decisions in relation to the Covid-19 vaccination, so I felt very fortunate to be able to observe this hearing.
It’s rare to have any information about what a Court of Protection hearing is going to be about until the hearing actually starts, and although all of those I’ve observed have been very professionally helpful, this one was of course particularly relevant to me. As I’m not one of the people on the ground having to grapple with best interest decision making about Covid-19 vaccination for particular individuals, it was fascinating to observe this hearing and watch the way in which Mr Justice Hayden considered all the factors in this complex case.
A key aspect of this case is that (unlike – as far as I am aware – all previous cases), the judge had to make a decision in the context of significant opposition from the person themselves (not just their relatives).
Previous published best interest decisions
There have been several published judgments regarding whether or not it’s in a person’s best interests to receive a vaccination for Covid-19.
The three most widely known are two before the Vice-President of the Court of Protection, Mr Justice Hayden: E(Vaccine)  EWCOP 7 and SD v Royal Borough of Kensington and Chelsea (2021 EWCOP 14. and a third before Mr Justice Butler Re C  EWCOP 19. In all three cases, the person concerned was living in a care home, lacked the relevant decision-making capacity, and it was family members – rather than P themselves – who opposed vaccination. The judgement in each case was that it was in the person’s best interests to be vaccinated.
In his conclusion in the ‘SD’ judgment, Mr Justice Hayden states:
What it is important to emphasise here, as in so many areas of the work of the Court of Protection, is that respect for and promotion of P’s autonomy and an objective evaluation of P’s best interests will most effectively inform the ultimate decision. It is P’s voice that requires to be heard and which should never be conflated or confused with the voices of others, including family members however unimpeachable their motivations or however eloquently their own objections are advanced. (para 33, SD v Royal Borough of Kensington and Chelsea (2021 EWCOP 14)
The person at the centre of this case
The person at the centre of this case, S has advanced dementia and (since 2019) has been living in a large care home of currently 79 residents. She is subject to a Standard Authorisation under the Deprivation of Liberty Safeguards (DoLS) and is appealing this via s.21A proceedings. The issue of vaccination arose in the course of these proceedings as a discreet issue and it is only this issue which was before the court today.
When the GP visited the care home, S declined the Covid-19 vaccination and has done so repeatedly. S’s resistance to vaccinations appears to be longstanding, with 4 recorded occasions when she has explicitly refused the flu vaccination since 2010 (and no record of her ever having received it).
S never married, does not have children, and other than someone who appears to be a cousin, ‘T’, she has no friends or family left to support her.
In her mind, S has reverted to life in the late 1940’s, when she was living with her parents and working as a secretary in the Lyons cake factory. At 4pm every afternoon during her working life, a loud horn sounded for workers to exit the building. And now at 4pm every day, S puts on her coat, picks up her handbag and announces she is done for the day and is off home, where her mother will have her tea waiting for her.
In the opening summary, S was described as a lady who does not appear to need a great deal of support: she is “feistily independent”, “extremely stubborn” and someone who could become very “fixed in her ideas”.
It appears that S read a newspaper article in 2019 which she interpreted as saying most medical treatment and/or vaccinations were likely to be injurious rather than beneficial and from that point on has resolved not to cooperate with any medical treatment at all, to the extent of becoming physically aggressive when a doctor tried to examine a rash on her leg. On another occasion she told carers she had “wiped the smile off the face” of a psychiatrist who tried to speak with her.
She has consistently resisted offers of the Covid-19 vaccination and has been assessed by her GP as lacking capacity in respect of this decision, on the basis that she cannot retain the relevant information and struggles to weigh it.
Best interests, vaccination and restraint
At the beginning of the hearing, counsel took different positions as to whether or not it would be in S’s best interests to be vaccinated.
S’s own representative, Rebecca Hancock, said she was seeking the court’s guidance and had no definitive position.
Amelia Walker representing the CCG said that it is in the best interests of everyone, and in particular residents of care homes, to have the vaccine and that this would also apply to S. She also reported that administering the vaccine would likely be straightforward and the GP could be assisted by two community mental health trust nurses trained to provide physical restraint. She said, “the GP’s view is that physical restraint wouldn’t be necessary – but that they could provide ‘light touch support’.” Mr Justice Hayden asked, “is that a euphemism for gentle restraint?” and added, “I don’t understand the GP saying restraint wouldn’t be needed because last time she was all for giving someone a kicking.” (In fact, it later turned out that the GP report said that restraint would be needed.)
Tony Harrop-Griffiths, representing the Local Authority, said it was a “difficult balance” but that he thought it was NOT in her best interests to have the vaccine.
There was very little known about S’s life story and her views when she had capacity, so Mr Justice Hayden sought what information he could – including consideration of the views of S’s parents as an indication of how she was brought up. A statement by her cousin T, told us that S’s father was a man of medicine and would very much have encouraged her to take the vaccine, but her mother was a spiritualist and held beliefs outside those that are considered normative.
Mr Justice Hayden was keen to hear from those who knew S now, and so (at short notice!) the team leader for the unit S lives in and the care home manager came on the video platform for 40 minutes. In Hayden J’s words they “brought her character, personality and temperament” into his court room and “hugely impressed” him with their “compassion and care”.
The team leader talked with fondness about S being “a very private lady”, “very independent”, “very strong willed”, and “pleasant on a one-to-one basis but someone who struggles to be on good relations with other residents”. She won’t allow staff to support her (“I don’t need help. I’m not stupid. Leave me alone.”) and doesn’t like to be touched at all (“she finds that very off-putting”). Refusal of medication for her blood pressure and cholesterol some years previously, led to attempts to covertly administer these to her in her tea, but these attempts were thwarted by her keen sense of suspicion!
Mr Justice Hayden explained he’s been asked to consider the option of a GP and two mental health nurses providing ‘light touch support’ to administer the vaccine, to which the manager replied “I hope they know kung foo!”, adding, “there will be no light touch about it, she’ll require full restraint to administer the vaccine, and it will be a difficult situation”.
Mr Justice Hayden explained to the staff he was “trying to balance risk of death against trying to protect her dignity, autonomy, who she is, her pride. She’s in a vulnerable group. That’s the dilemma the court’s being presented with”.
It had also been suggested by an independent expert that S might be given a sedative such as lorazepam: while this wouldn’t remove the need for physical restraint, it would significantly weaken her resistance. Yet it was unclear how this could be administered given it would arouse immediate suspicion if attempts to covertly administer were made. Staff described S as “like a sniffer dog” and as she prepares her own tea or juice, if she were given a cup of tea – she would know there was something wrong.
Care staff had initially felt S would need to go to the GP surgery for the vaccination, but given that she is someone who never leaves the care home and becomes “overwhelmed” if she goes past the care home’s reception area when taking a walk, it was acknowledged that trying to get her into an ambulance would be distressing, both for S and the other residents living on the unit. There was a suggestion of vaccinating her either in her bedroom or in the office where she speaks with her solicitor and Relevant Person’s Representative. Care staff however did not wish to be present, fearing erosion of the trust carefully built up between S and some of the staff. One said, “I don’t think it would be right for me to be in the room when she’s vaccinated. She would look to me for help and I wouldn’t be able to help her.”
The judge gave everyone a short break to reflect on what they had heard and then they returned for closing submissions.
Having heard the evidence, Rebecca Hancock now believed that although it’s an extremely delicate balance in this case, it’s not in S’s best interests to have the vaccination. She said that S has very few relationships of trust, but has a relationship with some staff which would be put at risk by vaccination against her wishes.
Amelia Walker, counsel for the CCG remained of the view that it was in S’s best interests to have the vaccination – although the argument put forward was from a ‘general view’ on the basis that it’s in the best interests of everyone to have the vaccine and particularly those who are vulnerable and in care homes. She was swiftly reminded by Mr Justice Hayden that you need to look at the individual’s particular circumstances: “That’s not to engage with the relevant law. You look at the individual – not just the medical but right across the full scope of her interests and welfare”. Amelia Walker also suggested that if S is not vaccinated she may find her activities restricted, e.g. not being able to go on trips (but, said the judge, she doesn’t anyway!).
Tony Harrop-Griffiths maintained the same position as he had initially presented; the Local Authority does not believe it is in S’s best interests to be vaccinated. He now gave four reasons: (1) because physical restraint would be required (even if sedation was also used) and that would lead to a breakdown of trust; (2) because there is already a history of lack of engagement with medical professionals, so evidence that she has a long-standing objection to medical intervention; (3) bearing in mind the wider picture that there is a s.21A challenge in progress, another (smaller) care home has been located, and they are willing to accept her unvaccinated, so that potential move is not a reason to advocate vaccination; and (4) since S does not engage in community activities or leave the care home, that too is not a reason to advocate for vaccination.
In considering the factors in this case, Mr Justice Hayden spoke of how there is little doubt that if S were to be infected, she at very high risk or serious illness or death.
Although all but one of the care home residents have already been vaccinated, more than 20 of the care home staff have declined vaccination – most of those because they “object in principle to doing so”. Mr Justice Hayden said, “That is their right. But with rights of course go responsibilities. They go into the home every day. They carry risk of infection.”
The care home staff “do not need to be told how awful this insidious virus is” because they “have seen it at first hand” during the first wave of the pandemic when 27 of their residents died.
He said, “there is no doubt at all that it is in S’s clinical best interests to receive the vaccine.”
But “analysis of best interests requires scrutiny of welfare in the widest sense not merely medical but psychological and emotional”. He quoted Baroness Hale in Aintree:
The most that can be said, therefore, is that in considering the best interests of this particular patient at this particular time, decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be. (para. 39 in Aintree University Hospitals NHS Foundation Trust v James)
Hayden J noted how “S expresses strong opinions regarding medical treatment but specifically to the vaccination” and “her compromised capacity does not mean her strongly expressed wishes are rendered nugatory” (of no value or importance). “If she were capacitious and refusing this vaccination that would be the end of it, as it is for the carers in the home who decide not to have it.”
Given S’s strong opposition to vaccination, treating her would involve restraint – either with or without sedation.
“I am not at all attracted to the restraint simpliciter or sedative restraint option. S has very few effective interpersonal connections with the outside world. She has no doubt for her own survival had to forge some level of trust for those who care for her. This is so intrinsic to her wellbeing that to my mind it requires to be protected vigilantly. She would resist, I have no doubt, any restraint – and it would create a traumatic and disturbing scenario, for her, for the carers and the other residents”. (Hayden J)
“Right at front of this case and in this care home, is the scarring of loss of lives and painful deaths. The real determination is to protect S from that. But though much of her cognitive function may have gone, her autonomy – and her own sense of it – not merely continues but flourishes, and she guards it carefully. Ultimately in my judgement, it is that which requires to be respected and is ultimately determinative of this issue […]. So for all these reasons, it is ultimately my clear conclusion that it is not in S’s best interests for her to receive the vaccine.”
This is the first judgment I am aware of where the person themselves (rather than their family, on their behalf) was refusing the vaccination and in this case, clearly quite strongly.
Although I know the potential consequence for S of contracting Covid-19 might result in the end of her life, for me, the thought of this 85-year-old lady being physically restrained in order to administer a vaccination that she so very clearly did not want, was just terrible. It would have surely damaged her fragile relationship with care staff irreconcilably, not just in her current care home but going forward to the new home if she moves there.
It was also really difficult for me to justify vaccinating S against her wishes, when the care staff and relatives visiting the home – who will be the ones likely to bring the virus in – retain the ability to choose whether or not to accept it themselves.
I really wasn’t sure which decision Mr Justice Hayden was going to make as I sat through the hearing. Details of all possible options were closely examined, especially the option of using a sedative which was discussed in some depth, so I was really quite relieved when he delivered the judgment and I absolutely agree with his decision and with the reasoning behind it.
I think the most important learning for me from being able to observe this hearing, is the way it has again, allowed me to watch the Mental Capacity Act 2005 ‘in action’ and understand how a senior High Court Judge, in this case the Vice President of the Court of Protection, works through the process of reaching a best interests decision.
I’m also able to take away with me some ideas that I can incorporate into my own practice when completing best interests assessments myself in future. For example, in this case, as there was no information about S’s past wishes, feelings, beliefs and values from when she had capacity, Mr Justice Hayden considered what S’s parents’ views might have been as an indication of how she was brought up and therefore what factors might influence her decision. While I know my own views of the world are very different from those of my parents, in the absence of any other information I can now see how this might be helpful in some situations.
This hearing also allowed me to observe playing out in action, how respect for and promotion of S’s autonomy and an objective evaluation of her best interests informed Mr Justice Hayden’s decision. Personally, I would have loved to have seen S express her views to Mr Justice Hayden in person and I don’t know whether she was invited to attend, or even aware that the hearing was taking place. But even without her physical presence, I do feel S’s voice was most certainly heard and her wishes and feelings – which were articulated so clearly by the care home staff who knew her – were clearly of central importance in Mr Justice Hayden’s decision.
In my experience, there continues to be a great deal of misunderstanding of the Mental Capacity Act 2005 within both health and social care, even though the Act has been in force since 2007. This is why remote access to these Court of Protection hearings is so very important and why I’ve been a supporter of the Open Justice Court of Protection Project. It really does such wonderful and important work in continuing to educate us all. I would encourage anyone reading this blog who has not yet taken up this unique opportunity to observe a Court of Protection hearing, to please try to make time for this while hearings are still available to view on line!
Astral Heaven is the Deprivation of Liberty Safeguards and AMHP Manager for a Local Authority. She tweets @AstiHeaven
 To learn more about these cases (and the broader legal framework for best interests decision-making about vaccination), you can listen to a 30-minute podcast on “Vaccine hesitancy and the Court of Protection: Who decides?”, in which Rosalind English interviews Amelia Walker (who represented the CCG in this case).