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Written on 8th March 2021 by Ruth Meyer

Under Section 4 of the Mental Capacity Act 2005 (the Act) a Deputy has a duty to make best interest decisions for a person who is unable to make decisions themselves (known as ‘P’). Best interest is not defined by the Act but there is a checklist of points that they need to consider, such as taking into account P’s past wishes and feelings.

It is against this backdrop that we have the case of E (vaccine) [2021] BWCOP7 concerning a case when an elderly lady with dementia and schizophrenia living in a care home. (Mrs E). The question was whether she was able to understand the decision as to have or not have the Coronavirus vaccine and if not whether her son was able to make a fully considered best interest decision for her.

Matters concerning Mrs E’s care and residence were already being considered by the Court of Protection and she had been found to lack the capacity to conduct litigation and make decisions on these matters.

Mrs E had been offered the Covid vaccine but her son, W, objected on the grounds that he was not sure if the vaccine would be safe and worked.

The Judge first of all considered Mrs E’s capacity to decide on whether to receive the vaccine. A video call had taken place between Mrs E and her GP where Mrs E was not able to remember that there was a virus called Coronavirus. The GP had asked her if she wanted the vaccine and she said “whatever is best for me”. The GP decided that Mrs E did not have capacity to decide whether she should receive the vaccine.

Despite this being an informal assessment, conducted by video call, the Judge found that this was sufficiently rigorous to comply with Section 2 of the Act and he agreed with the GP that Mrs E lacked capacity to decide whether or not to receive the vaccine.

In relation to Mrs E’s best interests, the Judge considered the factors under Section 4(6) of the Act and noted that she had received vaccinations in the past, prior to being diagnosed with dementia. He placed weight on the fact that Mrs E had advised her GP that she wanted “whatever was best for me” and noted that this statement was in keeping with her earlier approach to similar issues.

In respect to Mrs E’s son, the Judge was of the view that while the son’s views were worthy of respect, they were not reflective of what his mother would have wanted. 

The Judge noted that Mrs E was 80 years of age and this made her vulnerable to becoming seriously ill with the virus and furthermore, the care home that she was in had suffered an outbreak of Covid-19. Mrs E also lived in a country with one of the highest Covid-19 death rates per capita in the world and the risk of Mrs E contracting Covid-19 was much greater than others. He concluded that it was in Mrs E’s best interests to receive the vaccine. 

This case highlights several of the factors that need to be taken into account when making best interest decisions such as age, where you live, the current situation as well as past wishes and feelings. It was also interesting to note that the video assessment was considered sufficiently rigorous in this case to comply with Section 2 and 3 of the Act.

Furthermore, even though Mrs E had said that she wanted “whatever is best for me” and did not have capacity to make a decision, it was something that the Court wanted to take into account and respect as this was a statement that she had used earlier in life.

It can be seen from this case that best interest decision making can be difficult especially if your own personal views are in conflict with that it is believed P’s views are. The Act provides guidance and the more complex the decision, the greater the need to consider as many factors as possible when reaching a final decision including a ‘magnetic factor’. In this case I believe that P’s previous held beliefs were the magnetic factor.