The vaccine roll-out in England has been a huge success, with over 40s now being called for their first dose of the vaccine. However, it is no surprise that objections to receiving the vaccine have been raised for various reasons. This has caused a great deal of confusion for HR staff, who may be assisted by our FAQs article, and has also raised an interesting question about the necessary capacity for the COVID-19 vaccine and what to do if an individual lacks such capacity.
In this article we will consider the two recent cases of E (Vaccine)  EWCOP 7 and SD v Royal Borough of Kensington and Chelsea  EWCOP 14 which have sought to explain what the necessary capacity is for consenting to the COVID vaccine, and if an individual does not have sufficient capacity what would be in their best interest.
In law, capacity denotes a person’s competency to enter a legal transaction. This will depend on the individual’s state or condition, and there are different types of capacity depending on the legal transaction.
The first reported case about capacity in relation to the COVID-19 vaccine was E (Vaccine)  EWCOP 7. An application was made regarding an 80-year-old woman when she was offered the COVID vaccine following several cases of infection at the residence she was staying in at the time. The son objected to this, alleging concerns about the speed the vaccine was rolled out.
In relation to the question of her capacity, at a doctor’s appointment the woman did not remember that there was a dangerous sickness called coronavirus nor that her doctor came to the residence to deliver injections. When asked whether she wanted the vaccine the woman stated that she wanted “whatever is best for me”. The doctor concluded that she did not have the capacity to consent to the COVID-19 vaccine, and the judge was satisfied with this given that the woman was:
1) Unable to understand information concerning the existence of COVID-19 and the potential dangers it posed;
2) Unable to weigh up the information relating to any advantages/disadvantages of receiving the vaccine; and
3) Could not retain the information long enough to use it to make a decision.
In SD v Royal Borough of Kensington & Chelsea, an application was brought by the daughter of a care home resident in her 70s. The daughter was seeking a declaration that it would not be lawful to administer her mother with a vaccine on the basis that it would be contrary to both her own and allegedly her mother’s wishes. Unfortunately, her mother did not have sufficient capacity to make the decision herself and the daughter was concerned that the COVID vaccine had not undergone sufficiently rigorous safety trials.
The judge considered several factors to determine whether it would be in the mother’s best interest to have the vaccine, predominantly the characteristics that would have made the mother particularly vulnerable to severe disease/death on infection. This included the mother’s tendency to wander the care home because of her short-term memory problem which would make it impossible for her to follow social distancing and preventative hygiene measures. The judge also considered the fact that everyone else in the care home was vaccinated and it was therefore logical that in due course more visitors would be allowed to enter the care home increasing the risk for the mother.
In both cases, the fact that the individuals were previously willing, when they had capacity to consent, to be vaccinated in line with public health advice was relevant to the assessment of whether they should get the COVID vaccine. Both the woman in E (Vaccine) and the mother in SD v Royal Borough of Kensington & Chelsea had received the flu vaccine yearly for many years prior to these applications.
It was concluded in both cases that the objections raised were the objections of the children rather than the individual concerned and it would therefore be in both their best interests to have the vaccine administered.
However, every case turns on its own facts and an objective evaluation of the individual’s best interests will be necessary to determine each case. Should an issue arise about whether your loved one should receive the COVID-19 vaccine, or if you have concerns about a loved one’s capacity to make decisions, we may be able to assist. You can contact us on 01727 798000 or through the enquiry form below.