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


24th March 2021

The Court of Protection has ruled that a Clinical Commissioning Group (CCG) can administer a COVID-19 vaccination in the best interests of someone despite objections from the man's father.

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 objection

CR’s father, SR, objected to the vaccination. Although, he had ‘no objections to the vaccination in principle’, he did not think it was ‘the right time for his son’. SR based this mainly on the ‘lack of data as to the consequences of such a vaccine for those who fell into the same category’ as CR. SR was also concerned that the ‘contents of the vaccine itself might interact with the other medication his son is receiving and in particular those that were used to control his epilepsy, and treat his ADHD.’ The judge explained that there was no doubt that SR’s objections were to ‘ensure that CR came to no harm as a result of another vaccination’ and that they were what SR ‘regards as being in the best interests of CR’.

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.

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