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GN Law Media: Vaccination & Capacity – SS v LB Richmond on Thames and SWL CCG

The decision in SS v LB Richmond on Thames and SWL CCG was significant as all previous judgments seemed to be in favor of the vulnerable person receiving the COVID-19 Vaccine.

The subject of the proceedings, SS, was 86 years old and had advanced dementia and had been living in a large care home. When the GP visited the care home, SS declined the vaccination and had done so repeatedly. SS also had a history of resistance to vaccinations, with four recorded occasions where she had explicitly refused the flu vaccination since 2010. It was reported that SS had read a newspaper article in 2019, which she interpreted as saying that most medical treatment and/or vaccinations were likely to be injurious and had refused to cooperate with any medical treatment since. SS was assessed by her GP as lacking capacity to make the decisions regarding the COVID-19  vaccine, as she could not retain or weigh up the information in relation to the vaccine.

SS’s representatives informed the court at the beginning of the hearing that they had no definitive position about whether SS should receive the vaccine, however, the CCG considered that as a resident in a care home it was in her best interest to have the vaccine. The local authority took the view that it was not in her best interest to have the vaccine. A report from the GP stated that restraint would be needed to administer the vaccine.

The judge heard oral evidence from the care home staff who described SS as a “very private lady” and “very independent”. It was also reported that she does not allow staff to support her and does not like to be touched at all. The care home manager considered that SS would require full restraint to administer the vaccine and it would be a difficult situation.

It was also suggested by an independent expert that SS could be given a sedative. This would not remove the need for restraint but would weaken her resistance. However, staff reported that attempts have been made in the past to covertly administer medication to SS, but these had not been successful due to her suspicions. Care staff initially felt that SS would need to go to the GP surgery to have the vaccine, but it was later discussed that this would be distressing for her. There was a suggestion that SS should receive the vaccine in her bedroom or the care home office, however, staff did not wish to be present during the vaccine over fears that it would damage the relationship they had built with her.

Based on the oral evidence, counsel for SS expressed that although it was a finely balanced issue, it would not be in SS’s best interest to have the vaccine. She commented that SS had very few relationships of trust, and this could put her relationship with staff at risk. Counsel for the CCG remained of the view that it was in SS’s best interest to have the vaccine. Given the above, the local authority did not consider that it was in SS’s best interest to have the vaccine.

Mr Justice Hayden acknowledged the fact that if SS did get infected with COVID-19, she would be at very high risk of death or serious illness. He stated that, “there is no doubt that it is in SS’s clinical best interest to receive the vaccine” but noted that the analysis of her best interest was not just medical but also psychological and emotional. On analysis, Hayden J concluded that it was not in SS’s best interest to receive the vaccine.

This was the first reported judgment where the person themselves rather than a family member was objecting to the vaccination. This case highlights the importance of P’s autonomy in an evaluation of best interest. It shows that a person’s beliefs, even if delusional, are still important as it is a reflection of their reality.

This case is significant as it shows that decision making in regards to the COVID-19 vaccine must be made on an individual basis, and it is not presumed that it will always be in P’s best interest to have the vaccine.

Cerise White – Trainee solicitor

Posted on Thursday, 1st July 2021