Mental Capacity Case

A CCG v DC, MC and AC

HHJ Burrows


This case concerned a 20-year-old man in residential care who lacked capacity to decide whether to have the Covid-19 vaccinations and boosters. He was at high risk of serious consequences because of his respiratory condition and profound learning disability. His parents did not consider the vaccinations to be in his best interests. Although the dispute was clear since February 2021, no best interests meeting was held until September and no court application made until December 2021:

"6. It seems to me this is unacceptable. If, as the CCG contends, DC is a highly vulnerable person for whom infection with COVID-19 could be extremely serious, then they have a duty to act speedily to protect him. Once it becomes clear there is a dispute between clinicians and the family on an urgent matter over important treatment of a mentally incapacitous adult, an application to the Court of Protection should be brought- and determined- with urgency." (emphasis added)

Neither his parents nor his sister had been vaccinated against Covid. His father was concerned that the vaccines had not gone through the usual tests and may not be as safe and efficacious as the public had been led to believe. He was particularly worried about the risk of blood clots. But he was not an "antivaxxer"; rather, his reasons were explained and rationalised, unmotivated by conspiracy theories. As the court recognised, the usual trials had been truncated and licensing accelerated, albeit for very good reasons. His mother had been brought up in the Church of Scientology and was not opposed to vaccines per se. Instead, she was worried that this one might make her son ill from which he would not recover; a view backed up by a rational analysis.

DC had never expressed any opinions or wishes from which the court could confidently predict what he would have decided. If he were a capacitous adult, there was every reason to believe that he would be as similarly independent in his thinking as his family:

"56. I am quite sure that if DC were able to make decisions for himself, he would be influenced by the approach taken by his father and mother: he would challenge the figures, he would investigate them, and he would have conversations with his parents about the data. He would likely be influenced by his sister.

  1. That being said, a reasonable approach to such inquisitiveness would also take other factors into account. Firstly, that the vaccine is a response to an emergency, and therefore decisions have to be made before the level of understanding of risks/benefits is as full as might ideally be the case. A decision not to have the vaccine is as much a decision to expose oneself to risk as is the decision to have the vaccine. If one criticism can be made of MC, it is that his overthinking means that he is unable to act urgently, that he is perhaps somewhat paralysed by his own fixation on greater and greater information and drilling further and further down into an issue before he is able to make a decision. It could be argued that the coronavirus pandemic makes that a luxury he cannot afford. A decision has to be made if one is in a high risk category like DC.
  2. Furthermore, having the vaccine is designed to slow the progress of the virus and to relieve pressure on healthcare services. To that extent the decision to have the vaccine is altruistic as well as selfish. A reasonable person with high risk is likely to be inclined to receive the vaccine for altruistic reasons.
  3. Another important factor concerns DC's ability to leave his room and undertake activities. Risk assessments in respect of other people now include whether those having contact with them are or are not vaccinated. In other words, having the vaccine can open up the options available to engage with other people. It is clear from the evidence from the care home that DC is alone in being unvaccinated there. This has meant that he has been unable to attend outdoor events and has been required to isolate for up to 10 days after home visits."
On balance, and "hesitate to go against DC's mother's instinct and his parents' analysis", HHJ Burrows held that it was in DC's best interests to be vaccinated and boosted:

"62. I have to place DC at the centre of my decision-making. I am persuaded that without the vaccine he is at risk of COVID-19 causing him much greater harm than if he has it. He is at high risk. There are risks associated with the vaccine, and these are not yet fully understood. However, I am satisfied on the basis of the CCG's evidence that those risks do not outweigh the advantages. The main reason I will allow the application from the CCG is because I can see it having a positive effect on DC's enjoyment of life by allowing him to be more involved in the life of his care home and with his parents. If DC were able to make a decision for himself, I am satisfied that would be a magnetic factor for him."

However, this was subject to the following caveats:

  • The CCG will ensure that DC is reviewed after the vaccine is administered to identify any side effects. Any such side effects will be included in an ongoing risk/benefit analysis.
  • MC's parents will be made aware of any findings and the state of the ongoing risk/benefit analysis.
  • That analysis will be kept up to date and in line with NHS/JCVI advice.
  • No physical intervention in the form of restraint is authorised.

Given that this is a medical treatment dispute, it is good to see that it was the CCG that brought the application, albeit 10 months after the dispute first arose. The court endorsed for the MCA the approach adopted in children cases, namely "very difficult to foresee a case in which a vaccination approved for use in children, including vaccinations against the coronavirus that causes COVID-19, would not be endorsed by the Court as being in the child's best interests absent a credible development in medical science or peer reviewed research evidence indicating significant concern for the efficacy and/or safety of the vaccine or a well evidenced medical contraindication specific to the subject child" (M v H, and P & T [2020] EWFC 93). However, as is clear from the judgment, the subjective aim of trying to determine what P would have decided lies at the heart of this best interests decision.