Many of the most vulnerable members of society lack the mental capacity required to consent to being vaccinated against COVID-19. As a Court of Protection case showed, that fact can give rise to formidable legal difficulties.

The case concerned a care home resident, aged in his 30s, who lacked capacity due to lifelong severe learning disabilities, autism and epilepsy. His condition was such that it was impossible to discern whether he wished to be vaccinated or not. His father strongly objected to him undergoing the procedure.

The father said that he had no objection to the vaccine in principle, but contended that it was not the right time for his son to receive it. He asserted, amongst other things, that the vaccine in question had not been adequately tested. There was said to be a lack of data in respect of its effects on those with severe learning disabilities.

Concerned that the vaccine might interact badly with his son's other medications, the father stressed that some people had died after receiving it. Given his son's relative youth and the high survival rate amongst those who contract the virus, he questioned whether the risks of vaccinating him would be outweighed by the alleged benefits.

He agreed that his concerns were influenced by his conviction that his son's autism was linked to him having received the MMR vaccine as a child. Given his objections, the local NHS clinical commissioning group (CCG) applied to the Court for permission to vaccinate his son on the basis that it was in his best interests.

Granting the application, the Court noted that the father's genuine objections were founded on his love for his son. However, they had no basis in clinical evidence. The COVID-19 vaccine was approved for use in the UK and was highly effective in reducing infection rates and hospitalisations. The supposed link between autism and the MMR vaccine has been firmly and officially discredited.

The UK had one of the highest per capita death rates from the virus in the world and a high proportion of those deaths had occurred in care homes. The man was unable to comply with social distancing or hygiene measures and, if he contracted the disease, the consequence could be serious illness or death. Although he was seriously overweight, vaccination was not contra-indicated in his case.

Noting that there was overwhelming objective evidence of the advantage of vaccination, the Court authorised the CCG to make arrangements for the man to undergo the procedure. It emphasised, however, that its order did not permit the use of physical force or restraint in administering the vaccine.

For help or advice on court of protection or private client matters, please contact Tracy Creed t.creed@sydneymitchell.co.uk 0808 166 8860.

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