The Court of Protection is increasingly used to grappling with debates around the administration of the Covid-19 vaccination.
This issue was before the court on 6 May 2021 in A CCG v AD (by his litigation friend the Official Solicitor) and AC  EWCOP 47. We were instructed on behalf of AD who is represented by his litigation friend, the Official Solicitor. Therefore, I will confine this article solely to the information provided in the judgment which can be read in full at:
Where an individual lacks the mental capacity to consent to the Covid-19 vaccination, a decision has to be made in their best interests. If everyone involved agrees that the vaccination should be administered, this is fairly straightforward and the vaccine will be administered in their best interests. However, where it is not agreed, an application should be made to the Court of Protection for the case to be determined.
In AD’s case, the CCG (the Clinical Commissioning Group with responsibility for AD’s medical services) applied to the court for authorisation to administer a covert sedative medication to AD and the AstraZeneca Covid-19 vaccination. The CCG also sought the court’s approval for the administration of the booster vaccination, if the first doses went well and there were no serious adverse reactions.
AD is a young man, in his thirties, who lives in a supported living placement with a 24/7 package of care. He is described as a sociable person who enjoys going out in the community. AD is said to have no understanding of Covid-19 or the measures that can be taken to reduce the risk of contracting the virus.
The CCG were particularly concerned about the risk to AD if he were to contract the virus due to factors which potentially make him more vulnerable. Further, AD experiences significant health anxiety and therefore he does not engage with any medical treatment and is resistant to professionals.
There was no dispute in relation to AD’s capacity to decide whether to receive the Covid-19 vaccination and related anxiolytic and pain relief medication. Hayden J, the Vice President of the Court of Protection, has set out in the case of E (Vaccine)  EWCOP 7 that an assessment of capacity in relation to the Covid-19 vaccination is ‘unlikely to be a complex or overly sophisticated process when undertaken.’
The dispute related to whether it was in AD’s best interests to have the vaccination. AD was considered to object to the vaccination as when a social story had been read to him concerning the virus and vaccination, he shook his head and said ‘no.’ This was in keeping with his resistance to medical intervention. Beyond this, AD was not notified about the application as it was considered by all involved that this could cause him distress and impact on the provision of the intervention.
AD’s mother, AC was a party to the proceedings and had concerns about the safety of the vaccination and whether it was appropriate to be administered to AD.
Authorisation for a booster vaccination was opposed by both AC and the Official Solicitor on behalf of AD. It was submitted on behalf of AD that the court should not approve the booster vaccination as “AD should be afforded the opportunity to consider it at the appropriate time as would be afforded if he had been assessed to have capacity.” It was also noted that AD’s response to the first vaccination was not known and the position regarding revaccination had not yet been determined.
HHJ Brown took into account the submissions of the parties and concluded that it was in AD’s best interests to received covert sedative medication for the Covid-19 vaccination to be administered.
In addressing AC’s concerns, HHJ Brown stated that she did so ‘with profound respect and deep compassion.’
HHJ Brown made clear that the court was not authorising the use of force to administer the vaccination. Turning to consider AC’s evidence relating to the vaccination itself, HHJ Brown considered ‘concerns submitted by AC in relation to the efficacy and basis for the vaccination are not for the court to determine. The court is of course concerned with the particular application before it.’ This is synonymous with comments made by Hayden J in SD v Royal Borough of Kensington and Chelsea  EWCOP 14.
HHJ Brown took into account AD’s opposition to healthcare interventions and balanced this against the evidence of the risks to AD of contracting Covid-19 and expressed: ‘in my judgment it is overwhelmingly in favour of him receiving the vaccine.’ She added that she was ‘impressed by the careful thought that has gone into how that vaccine can be administered without causing AD distress.’
In respect of the application for authorisation for a booster vaccination, HHJ Brown agreed with the submissions made on behalf of the Official Solicitor. She considered that the guidance and medical advice may have changed by the time any booster may be required. Therefore, concluding that such authorisation would represent an “overreach.”
The judgment helpfully provides comprehensive details about the care plan and reasoning for the determination. Therefore, it should be particularly useful when considering cases involving proposals for covert sedative medication and for understanding the court’s approach to the Covid-19 booster vaccination.
Emma Bergin, Solicitor
Posted on Tuesday, 24th August 2021