By Eloise Crang, 19th October 2021
I’m a medical applicant, currently sitting my last year of A-levels studying Maths, Chemistry, and Biology, so I was delighted at the opportunity to observe a real-life medical ethics case in play. Having mainly read about these sorts of scenarios in medical books, or when revising for the situational judgement test in the UCAT (university clinical aptitude test), I was keen to watch what actually happens in practice.
The case I observed, COP 13364813 before Sir Jonathan Cohen, concerned issues of capacity and whether or not to administer a COVID-19 vaccination to a woman in her late 80s, GA.
Even before observing the case, I thought I had already made up my own mind as to what should happen: of course being vaccinated would be the best option for a clinically vulnerable person. However, through hearing the barristers’ different positions, and the arguments of GA’s son, I began to realise how nuanced this case was when you consider all the variables. Through having the opportunity to see it play out in this case, I now also understand what ‘best interests’ means in the Mental Capacity Act 2005.
Prior to this hearing I had never attended court (either virtually or in person), so I was unsure about what to expect. It was fantastic to be supported by Claire Martin, a member of the core group of OJCOP and a family friend, who acted as a mentor to explain legal jargon and summarise what was being said. She helped me to feel less intimidated.
I noticed how the judge let GA’s son speak about everything he wanted to, and how important this was as it was clear he felt his voice and opinion had been dismissed previously. (It had been decided that he lacked capacity to litigate.) I had no idea that family members were able to input as much as GA’s son did. Throughout this hearing, he was becoming increasingly distressed at the fact that he no longer held Power of Attorney for his mother, it having been determined at a previous hearing (in February 2018) that his mother “lacked the relevant mental capacity at the time, both in respect of property and affairs, and health and welfare” (para. 16) and it being the court’s responsibility to make these decisions in her best interest.
If GA had capacity to make her own medical decisions, she would be able to choose for herself whether or not to have the covid jab. But it was agreed that she did not. Her severe Alzheimer’s dementia meant that she could not understand the relevant information in order to make a decision.
The term ‘best interests’ was used a lot, which constantly reminded me of the point of this hearing and forced me to consider GA’s perspective and empathise with GA – despite her not attending.
Section 4 of the Mental Capacity Act (MCA) 2005 says that acting in someone’s best interests means considering their past and present wishes and feelings (especially from when they had capacity) and also consulting anyone engaged in caring for GA and interested in her welfare, so amalgamating the thoughts of GA’s children, the GP and the parties.
Sir Jonathan Cohen said, “the court must make a decision for what is the appropriate action in GA’s best interests, with a wide and holistic consideration including her children”. From every party there was a shared motive: to act in GA’s best interests. From a medical standpoint, this was to protect GA physically, as she is extremely clinically vulnerable to COVID-19, but also mentally, to protect her from the low mood and depression that shielding and social isolation can cause.
Once Peter Mant, the barrister and counsel for CHC, had proposed the position that it was in GA’s best interests to administer the Oxford/AstraZeneca vaccination at her home, where she already has 24-hour care, he backed it up with four key pieces of evidence:
- P’s undeniable risk of death if she is not vaccinated
- the “clear and unequivocal” scientific evidence supporting the vaccine
- no evidence to point towards GA already having COVID-19 antibodies
- her past history of accepting influenza and other vaccinations.
The latter was the key piece of evidence I found most interesting. From participating in other clinical work experiences, the value of a patient’s history has consistently been hammered home, so I was surprised to hear its use in another context. I had previously associated a patient’s history with recording past health issues that could be a risk factor for a present illness. I hadn’t considered its application in reconstructing the thought paths, values and prior wishes of a patient. At court, it became apparent that her patient history was essential to inform the best interests decision, since it allows the decision-maker to base the decision on the person’s life’s values, wishes and actions. If she accepted vaccinations before, they assumed it was unlikely she would object to this jab. This problem-solving via piecing together information about GA from her medical records and family to try and extrapolate what her thoughts on the COVID-19 vaccinations would have been from her past decisions was ingenious to me.
Exposure, mostly to doctors, had made me view a patient’s best interests as being the doctor’s final call using purely medical facts. Under s.4 of the Mental Capacity Act 2005, it explicitly states not to make assumptions of what a person’s best interest would be, hence the court proceedings and accumulation of evidence to reflect GA as a person, in all elements of physical, emotional and mental health. Encouragement of GA’s involvement with the decision, despite lacking capacity, is highlighted too and was clear when GA’s interest in going to her local Asian sweet shop was considered. She displayed the desire not to be socially isolated, and so an implication of her receiving the vaccination would be to give her this freedom. Consequently, my idea that if someone lacked capacity, they would be unable to participate at all in decisions made about them was contradicted. I learnt that a person may lack capacity to make healthcare decisions, but have the capacity to choose what activities they do on a day-to-day basis and that communication with a patient in a medical and field setting is key to ensuring you understand their wishes and preferences in making a best interests decision. The court hearing showed me it’s important to go beyond your own opinions of the best medical option to give the best possible individualised care for them based on their wishes and feelings.
GA’s case reminded me of the four pillars of medical ethics (autonomy, non-maleficence, beneficence, justice) and their role when discussing a patient’s best interests. For example, one possible outcome could have been not administering the vaccine, which could run counter to the principle of ‘non-maleficence’, as her vulnerability to the virus may cause harm, if no vaccine is administered. Another argument used by the barristers was GA’s need to regain some independence and go out in society again, like going to the shops or meeting her grandchildren, which may only be possible with the protection of a vaccination. This attention to detail enlightened me to how thorough the lawyers are, as well as the system more widely, in trying to ensure the best possible care and lifestyle for GA, something which I previously had thought only healthcare professionals prioritised.
GA’s son did not agree with the judgment, although he stated that he might have made the decision for his mother to have the vaccine himself. I understand that he wanted to retain the right to make that decision for his mother himself, and could see why he was upset about this.
My overall experience at the hearing was incredible. It made me rethink how I viewed ethics and its involvement in medicine. Now I will embark on my medical career with a better understanding of what ‘best interests’ means in practice. Doctors, much like the judge and barristers I observed, have the responsibly to protect vulnerable people in society, and I learnt that prioritising their wishes, beliefs and values before your own opinion is the only way to ensure this protection.
Eloise Crang is a year 13 school student planning to apply to medical school.