The Court of Protection is asked to determine what is in the ‘best interests’ of people who lack the capacity to make their own decisions. This is often when there a dispute between the patient or resident's family, and a treating NHS Trust or care home.
Three recent cases are particularly relevant during the COVID-19 pandemic:
In SD v Royal Borough of Kensington and Chelsea  EWCOP 14, the daughter (SD) of a care home resident (V), applied to the Court of Protection for a declaration that it was not in her mother’s best interests to receive a vaccine against COVID-19. SD believed that there was an unacceptable risk of side effects, and that, in essence, the vaccines were not proven to be safe.
The Court considered the evidence of V's own wishes; in particular, in the past when V had capacity to make her own decisions, she had accepted the influenza vaccine each year. SD argued that V had simply been “following the herd”.
In making the necessary evaluation, the Court stated that it will “survey the entire canvas of available evidence”, and consider “authorised, peer-reviewed research and public health guidelines”. The Court concluded that, taking into account V's likely wishes, and the risk to V’s life and health if she did not take the vaccine, it was in her best interests to receive the vaccine.
This case emphasises the importance of seeking out what V's wishes are likely to be. As Hayden J said, the voice of P “should not be conflated with the voices of others”, even that of well-meaning family members.
In Sandwell and West Birmingham Hospitals NHS Trust v TW and FY  EWCOP 13, the Court considered the case of TW who had become sadly and tragically unwell in England. His family, who lived in Canada, wished to visit him before life-sustaining treatment was withdrawn. The Court was asked to decide whether it was lawful to withdraw the life-sustaining treatment, or whether it was in TW's best interests to wait at least three weeks for his family to travel to visit him.
The Court accepted that TW had reached such a stage of medical precariousness that it was no longer possible to preserve his dignity at all times (he was suffering from physical symptoms which required treatment and management). The Court noted that the strong presumption that it is in a person’s best interests to stay alive was “of the most profound importance”. However, in this case, that presumption was displaced by the medical evidence. To prolong care, he would be likely to require invasive intervention and CPR would “compromise his dignity while achieving nothing by way of treatment”. In addition, the Court accepted that TW would not be aware whether a family member attended at his bedside or not.
Keeping TW's best interests in sharp focus, the Court concluded that a plan to artificially sustain him for three more weeks was contrary to his best interests at the end of his life.
In VE v AO, The Royal Borough of Greenwich and South East London CCG  EWCOP 23, VE made an application challenging the deprivation of liberty of her terminally ill mother (AO), at a care home.
In March 2020, the Court determined that it was in AO’s best interests to be discharged from hospital back to the care home. However, due to COVID-19, national restrictions were then in force which prevented the family from visiting AO.
The Court accepted that it should seek to ensure that the circumstances of AO’s imminent death were “as peaceful and dignified as possible” and that AO would have wanted to live with VE instead of at the care home. The Court accepted the evidence from the CCG that palliative care could be arranged in VE's home. As a result, the Court declared it to be in AO's best interests to move to live with VE immediately.
The health and social care lawyers at Clyde & Co have been advising care homes, hospitals and medical professionals throughout the COVID-19 pandemic on the issues of best interests, capacity and consent. Our experience means that we can quickly identify whether you need to be involved with the court proceedings, and can help keep your involvement appropriately limited to preserve your time and resources.
If you have a question about capacity, consent or the Court of Protection, please get in touch by email or telephone.