Court of Protection rules on ‘best interests’ for COVID-19 vaccination patient

The case

In the recent Court of Protection case of NHS Tameside & Glossop CCG v CR [2021] EWCOP 19 (CP) His Honour Judge Butler considered whether it was in the best interests of CR, a 31 year old man who does not have capacity to make the decision himself, to receive a vaccination against COVID-19.

Background

CR was diagnosed with a lifelong severe learning disability, autism and epilepsy. He is classed as ‘clinically vulnerable’ as a result and falls within the priority group for the vaccination. The Clinical Commissioning Group (CCG) stated that the professionals involved in CR’s care ‘all share the opinion that it is in his best interest to have the vaccination’. CR’s GP was of the opinion that if CR was to contract COVID-19 there would be ‘a risk of severe ill health and possibility death’.

The decision

The judge held that the objections of SR had ‘no clinical evidence base’, as they were based on what SR believes ‘were the consequences of the MMR injection and autism of his son’.

The judge considered Section 4 of the Mental Capacity Act 2005 and that the ‘relevant circumstances’ in this case included CR’s specific vulnerability, along with the ‘overwhelming objective evidence of the magnetic advantage of a vaccination.’ He stated that a risk to CR exists and ‘the consequences of infection are also still high and engage his rights pursuant to Article 2 of the ECHR’. Therefore, in his judgment, ‘CR still faces a real and significant risk to his safety if the vaccination is not administered.’

Comment

This case was the first such application of which the judge was aware of in the region. It highlights the risks of COVID-19, especially for those who fall within the priority group of ‘clinically vulnerable’. It illustrates how the Mental Capacity Act 2005 can be used to determine whether a vaccination should be given to an individual who does not have capacity to make their own decisions.

If you need any legal advice on matters arising in this case, please contact Joanne Thompson.