Back in January I wrote an article about the rights or otherwise of an Attorney appointed under a Health and Welfare Lasting Power of Attorney to consent or refuse a COVID vaccination on behalf of their appointing Donor who has now lost capacity.
By way of an update I was approached by the BBC last week to comment on a case, the first of its kind, that has come before Mr Justice Hayden. Hammersmith and Fulham Council were seeking a declaration from the court that it would be lawful and in the best interest of an 80 year old care home resident who had lost capacity to have the vaccine on the next possible date.
The vaccination had been objected to by Mrs E’s son following his concerns about the safety of the injection. As required by section 4(6) of the MCA, Mr Justice Hayden considered the patient’s past and present wishes and feelings, the beliefs and values that would be likely to influence her decision if she had capacity and any other factors, she would be likely to consider if she were able to do so. Evidence was obtained from medical records, the donor herself via a video call and a statement from her GP who had been treating the patient both prior to and since the onset of her dementia.
The court was able to establish that she had willingly accepted the flu vaccine annually and it was recorded that in 2009 she had also received a swine flu vaccination.
“I consider the fact that, when she had capacity, Mrs E chose to be vaccinated in line with public health advice, to be relevant to my assessment of what she would choose in relation to receiving the Covid-19 vaccine today,” he ruled.
He also noted that, while she lacked capacity to consent to receiving it, she had “articulated a degree of trust in the views of the health professionals who care for her by saying to Dr Wade that she wanted ‘whatever is best for me’” during the video call with her GP.
Mr Justice Hayden was required to consider the views of Mrs E’s son, as someone interested in his mother’s welfare, as per section 4(7) of the MCA and whilst he respected the right of Mrs E’s son to his own views, he did not consider that they were reflective of his mother’s personality.
“It is Mrs E’s approach to life that I am considering here and not her son’s, Mrs E remains, as she must do, securely in the centre of this process.”
Mr Justice Hayden said: “It is a fact that Mrs E lives in a country which has one of the highest death rates per capita, due to Covid-19, in the world. By virtue of her vulnerabilities, the prospects for her if she contracts the virus are not propitious; it is a risk of death, and it is required to be confronted as such.”
He concluded: “The vaccination reduces that risk dramatically and I have no hesitation in concluding that it is in her best interests to receive it.”