8th April 2021 (updated 27th May 2021)

On 8th December 2020, the first person in the world was vaccinated against Covid-19. Now, over 37 million people in the UK have received their first dose of the vaccine. Deciding whether or not to have the Covid-19 vaccine may have been easy for some people, however for others, particularly those who lack capacity to make this decision, things have always not been as straightforward.

Over recent months there have been four significant cases in the Court of Protection relating to the Covid-19 vaccine and whether it can be given to people who have been assessing as lacking mental capacity to decide about this for themselves. In each of these cases, family members of care home residents who lacked capacity objected to their loved one receiving the vaccine. In the most recent case, it was the care home resident herself turning down the vaccine. These cases show how the Mental Capacity Act 2005 was applied to determine what was in the best interests of each individual person when it came to the Covid-19 vaccine, with judges carefully considering the human rights of those involved.

Let’s take a look at these cases in more detail…

Mrs E’s case

In January 2021, the Court of Protection was asked to consider the circumstances of Mrs E.

Mrs E is an 80-year-old woman diagnosed with dementia and schizophrenia who had been living in her current care home since March 2020. Court of Protection proceedings had been underway since July 2019, considering Mrs E’s capacity to make decisions about her care and residence, and evaluating which options may be in her best interests.

In January 2021, Mrs E was offered the Covid-19 vaccine, however her son objected to this and it was decided that she should not be vaccinated at that time. Mrs E’s representatives sought an urgent declaration from the Court of Protection on whether it would be lawful and in Mrs E’s best interests to receive the vaccine at the next possible date.

The judge, Mr Justice Hayden, found that Mrs E did not have capacity to decide whether to receive the Covid-19 vaccination. He based this conclusion on a recording of a video conversation between Mrs E, her legal representative, and a GP.

In determining what would be in Mrs E’s best interests regarding the Covid-19 vaccine, the judge considered her past and present wishes, feelings, beliefs, and values. Prior to being diagnosed with dementia Mrs E had chosen to receive other vaccines and she had shown a “degree of trust” in health professionals when she told the GP she wanted “whatever is best for me”.

The judge also considered Mrs E’s son’s wishes as part of the best interests decision-making process. Her son was not opposed to the vaccine in principle but felt that it was not the right time for his mother to receive it.

Mr Justice Hayden ultimately decided that it was in Mrs E’s best interests to be vaccinated against Covid-19, having taken into account her individual circumstances, her past and present views, and the views of people involved in her life. The decision was a person-centred one, which aimed to respect what was genuinely believed to be Mrs E’s wishes.

V’s case

In February 2021, soon after the previous case, Mr Justice Hayden was asked to consider another case relating to the Covid-19 vaccine. The individual was referred to as V, a woman in her early seventies living in a care home who has Korsakoff’s syndrome, an alcohol-related cognitive impairment.

V lacked capacity to decide whether to receive the Covid-19 vaccine. Her daughter asked the care home not to administer the Covid-19 vaccine, or any other vaccine, to her mother as she felt this would not be in V’s best interests. V’s daughter applied to the Court of Protection seeking a declaration that it would be in her mother’s best interests not to have the vaccine, however the local authority and her GP opposed this view.

The judge applied the same reasoning from Mrs E’s case to V’s circumstances, highlighting that she is “particularly vulnerable to severe disease or death” because of her age and health issues, and “most importantly, she lives in a care home” where more than a quarter of deaths due to Covid-19 have occurred. The judge acknowledged that V “cannot follow the principles of social distancing and preventative hygiene measures” due to her short-term memory problems and it would not be possible for her to self-isolate if she caught Covid-19. The judge also noted that all other staff and residents at V’s care home had been vaccinated which would result in “residents having greater contact with the outside world in due course”.

The judge considered V’s wishes and feelings. According to V’s daughter, V was “readily compliant with the advice of her doctors”, she had received the flu vaccine every year since moving to the care home, and she showed no resistance to receiving the Covid-19 vaccine.

The judge also took into account the views of V’s family while recognising the need to consider “the entire canvas of the available evidence”, before ultimately deciding “that the risk to V's life and health, if she were not to have the vaccine, would be unacceptably high and that it is in her best interests to receive it.”

CR’s case

In March 2021, another judge considered whether an individual referred to as CR should receive the Covid-19 vaccine.

CR is a 31-year-old man with epilepsy, autism, a severe learning disability, and he is also overweight. CR is classified as 'clinically vulnerable' to Covid-19 and lacks capacity to decide whether to have the vaccine. CR’s father did not think he should have the vaccine, mentioning CR’s health conditions, the belief that the vaccine has not been tested sufficiently with people with learning disabilities, concern about side-effects and the possibility that it does not stop a person contracting Covid-19.

Here the judge considered the ‘matrix of risk’ developed by Mr Justice Hayden in the previous cases summarised above. The judge in CR’s case found that even though CR is young, he “still faces a real and significant risk to his safety if the vaccination is not administered” and is in a clinically vulnerable group. It was not possible to establish CR’s wishes due to his communication difficulties, however the judge considered how CR had responded to other medical interventions, and believed CR would have considered factors “which point towards the evidence-based advantages of having a vaccination” if he were able to do so.

The judge considered the views of professionals involved in CR’s care as well as the views of his family. He also considered the 'relevant circumstances', which here he felt “must include the specific vulnerability of this man (notwithstanding his relatively young age), together with the overwhelming objective evidence of the magnetic advantage of a vaccination.”

The judge ultimately ruled that CR should be given the vaccine, however he specifically stated that physical intervention to administer the vaccine was not authorised.

SS's case

Most recently, Mr Justice Hayden made another determination of best interests in a case which differed significantly from previous judgements. This time, the objection to the Covid-19 vaccine came from the person themselves, instead of family members.

SS is an 86-year-old woman living with dementia in a care home. Proceedings in the Court of Protection had been underway since July 2020 as SS was objecting to living at the care home, and the court was looking at her placement in the home. Whilst exploring alternative accommodation for SS, it was brought to the court’s attention that she was reluctant to accept medical interventions of any kind, including the Covid-19 vaccine.

SS’s GP and care staff had attempted to persuade her to accept the vaccine, and it was determined that SS lacked capacity to make this decision.* The court therefore considered SS’s present and past wishes and feelings to inform a best interests decision. This took into account her resistance to the Covid-19 vaccine as well as her medical history (she had not had a vaccination in over 20 years) and her interest in an article which she read as arguing that medicine “did more harm than good”. Together, these factors indicated ‘a clear and consistent pattern of behaviour which predates SS’s diagnosis of dementia by a significant period’.

The plan to give SS the vaccine in her best interests involved ‘restrictive physical intervention’ and sedation. There was also a (likely well-meaning) relative who suggested telling SS that her father, who had passed away a long time ago but who was still very much alive for SS, had asked her to get the vaccine.

In deciding what would be in SS’s best interests, Mr Justice Hayden considered the risks not only to SS’s physical health, but also to her dignity, autonomy and wellbeing in a more general sense. Whilst SS was clinically vulnerable to Covid-19 due to her age and health conditions, the risks were mitigated in some ways as most residents and staff at the care home had been vaccinated, strict testing and hygiene measures were in place, and SS herself had no visitors. Overall, a plan involving restraint, sedation and deception was considered to be distressing for SS. It was also noted that Ms Fisher, the care home team leader, felt this plan was not appropriate. She told the judge that 'SS would look to her carers for help. They would not be able to intervene; that would be distressing for both parties'. Moreover, 'it would most likely dismantle the tentative trust that had been established over the months and in consequence of sensitive and determined professional effort.' Mr Justice Hayden decided that it was not in SS’s best interests to receive the Covid-19 vaccine.

*A quick note about the importance of language. The doctor recorded that SS “failed capacity assessment”. As the judge made clear: “It is not a test that an individual passes or fails, it is an evaluation of whether the presumption of capacity has been rebutted and if so, for what reason.”

What do these cases tell us about human rights and the Covid-19 vaccine?

These cases illustrate the importance of decisions around the Covid-19 vaccine. If a person lacks capacity to consent to the vaccine, it is essential to carefully consider all available information about the person’s individual circumstances in order to decide what is in their best interests. If someone lacks capacity to decide about the vaccine, this does not give decision-makers the green light to force people to have the vaccine. The Covid-19 vaccine should only be given if someone can (and does) consent to it, or if it is genuinely in their best interests.

In V’s case, Mr Justice Hayden concluded on the focus to be had in vaccination cases:

“In cases such as this, there is a strong draw towards vaccination as likely to be in the best interests of a protected party (P). However, this will not always be the case, nor even presumptively so. What it is important to emphasise here, as in so many areas of the work of the Court of Protection, is that respect for and promotion of P's autonomy and an objective evaluation of P's best interests will most effectively inform the ultimate decision. It is P's voice that requires to be heard and which should never be conflated or confused with the voices of others, including family members however unimpeachable their motivations or however eloquently their own objections are advanced.”

The importance given to an individual’s past and present wishes, feelings, values and beliefs in Section 4 of the Mental Capacity Act, the best interests checklist, is ultimately about respecting our human rights. Article 8, the right to respect for private life in the Human Rights Act, protects our right to autonomy which includes making decisions about our own health, such as whether to have the Covid-19 vaccine, as well as the ability to make “unwise” decisions. UK courts are public bodies in the eyes of the Human Rights Act, meaning that when making best interests decisions about the vaccine judges must uphold people’s rights and apply other laws in rights-respecting ways as far as possible. The emphasis on making rights-compliant decisions, even when using other laws, will be important for decision-makers moving forward, as further questions around capacity and consent arise during the Covid-19 vaccination roll-out.

Find BIHR's other resources about the Covid-19 vaccine and human rights

We have produced lots of guides, explainers and blogs all about the Covid-19 vaccine and how this interacts with our human rights, including:

Click here to visit our page all about the Covid-19 vaccine and human rights.