NHS Liverpool CCG v X and Y (Rev1) [2022] EWCOP 17 (28 March 2022)

X is a 50-year-old woman with severe epilepsy and mild learning difficulties. The CCG applied for a declaration it was in her best interests to be vaccinated against the COVID-19 virus (the virus). Those responsible for X’s medical care (including a GP and Consultant Neurologist), together with X’s Accredited Legal Representative, supported the application, but it was strongly opposed by her sister, Y. There was no dispute regarding capacity. 

It was proposed that X be offered the vaccine in accordance with an eight-point care plan which ultimately gave her the choice of whether or not to accept the vaccine. She would not be physically or otherwise restrained, nor offered any inducement or ‘treat’.

Y, who regarded herself as a mother figure to X, objected to the vaccine on account of unknown adverse side effects, including her perception of the potential harmful interaction between the vaccine and X’s epilepsy medication. She also relied on the fact that X had previously tested positive for antibodies to the virus and therefore has a degree of natural immunity.  

The GP, whilst acknowledging she was not an expert in this field, accepted X may have some natural immunity but aptly noted that vaccination is still recommended by the relevant government guidance even in those who have previously had the virus. In response to Y’s concern regarding the interaction between the vaccine and X’s epilepsy medication, the Consultant Neurologist provided no specific evidence on this point but continued to strongly encourage vaccination. 

As has become customary in COVID-19 vaccination cases in the Court of Protection, the Judge referred to the comments of Hayden J in SD v Royal Borough of Kensington and Chelsea [2021] where he stated “… it is not the function of the Court of Protection to arbitrate medical controversy or provide a forum for ventilating speculative theories. My task is to evaluate P’s situation in the light of the authorised, peer reviewed research and public health guidelines, and to set those in the context of the wider picture of P’s best interests…”.

Applying those principles, the Judge found it was in X’s best interests to be offered the vaccine in accordance with the care plan which he stated, “represents a genuine attempt to determine X’s wishes and feelings and preserve for her whatever measure of autonomy may be possible in the circumstances”.