Court of Protection confirms the principles to be…

On 30 March 2022, Mr Justice Poole, sitting in the Court of Protection handed down a judgment regarding the administration of Covid-19 vaccinations for individuals who lack capacity to make such decisions for themselves (North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) [2022] EWCOP 15). Previous cases determined at the height of the pandemic, such as E (Vaccine) [2021] EWCOP 7 and SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14, had resulted in the Court making a declaration under section 15 of the Mental Capacity Act 2005 that it was in P’s best interest – based on the specific facts of the case – to administer the Covid-19 vaccination, despite objections from P’s children.

However, as noted in paragraphs 2 and 38 of the judgment in North Yorkshire CCG, since those judgments, there have been significant changes in the course of the pandemic. Restrictions have been largely lifted, the Omicron variant has proved to be less harmful than the previous variants and now millions of doses of the vaccine have been administered, providing a large evidence base for their efficacy, albeit the UK continues to suffer a significant death rate from the pandemic (a substantial proportion of whom are unvaccinated).

Yet despite these changes, the Court in North Yorkshire CCG held that the principles adopted by the Vice President of the Court of Protection in SD v Royal Borough of Kensington and Chelsea [2021] EWCOP 14 should continue be applied by the Court of Protection in all vaccination cases going forward – both Covid-19 vaccines and other vaccines offered under national vaccination programmes. Those principles are as follows (paragraph 53 of the judgment in North Yorkshire CCG):

The best interests assessment is not confined to evidence of the health benefits and risks of vaccination but involves a wide review encompassing all the relevant circumstances, including those set out at ss.4(6) and (7) of the MCA 2005.
In relation to the benefits and risks to the health of P from vaccination, it is not the function of the Court to “arbitrate medical controversy or to provide a forum for ventilating speculative theories.” The Court will “evaluate P’s situation in the light of the authorised, peer-reviewed research and public health guidelines.” It will not carry out an independent review of the merits of those guidelines.
There may be exceptional cases where P’s condition, history or other characteristics mean that vaccination would be medically contra-indicated in their case but in the great majority of cases it will be in the medical or health interests of P to be vaccinated in accordance with public health guidelines.
Hence, disagreements amongst family members about P being vaccinated which are at their root disagreements about the rights and wrongs of a national vaccination programme are not suitable for determination by the court. It will be in P’s best interests to avoid delay and for differences to be resolved without recourse to court proceedings.

Accordingly, the Court of Protection has made clear that best interest cases concerning whether an individual lacking capacity should be vaccinated should not be used as a vehicle to challenge the merits of the Government’s national vaccination programme and associated public health guidelines. The remit of the Court’s jurisdiction in such cases is to conduct a best interests assessment encompassing all relevant circumstances relating to P; it is not the Court’s role to arbitrate conflicting medical theories or review adopted public health guidelines.

A second learning point from the case is the importance of securing permission from the Court for the instruction of an expert before the expert is instructed. In this case, relatives attempted to rely on the evidence of an anti-vaccination expert but the court had not given permission in advance for the disclosure of the case papers to the “expert” or for the admission of his report. The court held that this person, Dr Eccles, was not an “expert” and, in any event, that the case papers should have been disclosed to him. Parties to COP proceedings who want to instruct an expert should seek permission from the court in advance. The court will scrutinise the appropriateness of the expert and only grant permission if the person has the qualifications and experience to be an expert, and could give evidence which is likely to assist the court. Neither was the case here. No sanction was imposed on the relatives, who were acting in person, but the court may well have been far more critical of a lawyer who had instructed an expert without permission.

Georgina Fenton is a barrister at Landmark Chambers.