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Covid – 19 Vaccinations for an adult who lacks capacity and who has already suffered vaccine damage.

Last month we discussed a case that considered whether a child should receive the Covid- 19 vaccination or not if the parent does not consent. This case relates to an adult. There are a number of reported judgements from 2021 that cover this issue, however the case of

North Yorkshire Clinical Commissioning Group v E (Covid Vaccination) 2022 EWCOP15

https://www.bailii.org/ew/cases/EWCOP/2022/15.html

is a recent case (30.04.2022), which deals with whether it is in the best interests of an adult |E, who lacks capacity to receive the Covid-19 Vaccination to a vulnerable adult when he has previously suffered from “vaccine damage.” 

E suffered brain damage as a very young child, and it was presumed that E’s organic brain damage had occurred following him receiving the Whooping Cough vaccine when he was a child in the 1950s. As a result, E was awarded compensation twice under the Vaccine Damage Payments Act 1979 due to the “vaccine damage.”

Facts of the case:

The North Yorkshire Clinical Commissioning Group applied for an order that it is in the best interests of E, a man in his mid 60s with moderate to severe learning disability and who lacks capacity to receive the Covid-19 vaccination.

  • The Official Solicitor took the view that the vaccination was likely to be in E’s best interests.
  • E’s parents were deceased. Two of E’s siblings strongly supported the application.
  • Another of E’s sibling opposed it and sought the expert opinion of Dr Eccles, who was critical of the vaccination.

The judge noted the following:

  • E has resided in his current care home for over 30 years, and he is well cared for.
  • E enjoyed a variety of activities with his four siblings.
  • E would wish to attend indoor events as he had done in the past and would be restricted to attend if he was not vaccinated.
  • E communicates using Makaton sign language and demonstrated some understating of what an injection was, but he was not able to give any indication of whether injections were good or bad.
  • E received an annual flu vaccination since 2007.

The court held

  • The judge did not accept that it necessarily followed that someone who has suffered severe damage as a result of one vaccine given many years ago would reject the offer of the Covid-19 vaccine. These are different vaccines designed to protect against different viruses. 
  • Further to balancing all the circumstances, the judge concluded that it is in E’s best interests to be administered the Covid-19 vaccine.
  • The judge commented that the best interests assessment is not to be confined to evidence of the health benefits and risks of vaccination but also involves a comprehensive review encompassing all the relevant circumstances, including those set out in s.4(6) and (7) of the Mental Capacity Act 2005 (MCA);

S.4(6) MCA

The best interest assessor must consider, so far as is reasonably ascertainable—

(a)the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b)the beliefs and values that would be likely to influence his decision if he had capacity, and

(c)the other factors that he would be likely to consider if he were able to do so.

s.4(7) MCA

The best interest assessor must must take into account, if it is practicable and appropriate to consult the person who lacks capacity, the views of—

(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b)anyone engaged in caring for the person or interested in his welfare,

(c)any donee of a lasting power of attorney granted by the person, and

(d)any deputy appointed for the person by the court,

  • The judge also stated that disagreements amongst family members about whether a person who lacks capacity should be vaccinated are not suitable for determination by the court. It will be in the person who lacks the capacity best interests to avoid delay and for differences to be resolved without recourse to court proceedings.

How we can help

We are specialists in providing legal and social care training. If you require bespoke and practical skilled training on alternative communication skills, including accredited Makaton training, understanding of the law or other related social care issues, please contact us for a no-obligation discussion of your training needs.

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Disclaimer: The contents of this guide are for information and are not intended to be relied upon as legal advice

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