COVID-19 Vaccine and Capacity to Consent
The Coronavirus pandemic has been a period of trials and tribulations for all. Thankfully, we now have numerous vaccines being rolled out across the country, which is welcomed light at the end of the tunnel. In this article we will be looking at what to do when a person lacks the mental capacity to consent to the COVID-19 vaccine.
Everyone is assumed to have capacity to make decisions for themselves and they should be supported to make a decision. In relation to the COVID-19 vaccine, guidance produced by barristers who specialise in mental capacity law at 39 Essex Chambers suggest that this support would be helping the person understand the anticipated benefits of the vaccination in simple terms, as well as any likely side effects or risks and what the disadvantages of not having the vaccine are.
If support has been given and the person lacks the capacity to make a decision regarding the COVID-19 vaccine, there is a clear process that should be followed to ensure a best interests decision can be made.
If a person has Health and Welfare Attorney or Deputy
They can make the decision on the person’s behalf. Attorneys and Deputies must make decisions in the best interests of the person and properly record why a decision is in the person’s best interests.
If there is no Health and Welfare Attorney or Deputy
If there is no Health and Welfare Attorney or Deputy and the person has no advance decision in place, the relevant professionals will need to make a best interest’s decision.
The Government has produced specific advice relating to this and they have confirmed that the best interests process should be followed. This means that the decision-maker will need to consider all relevant circumstances, this includes views of family members and close friends, and the person’s wishes, beliefs and values.
This should be done in advance of the actual vaccination so the healthcare professional giving the vaccination has this information on the day and can confirm that it is still in the person’s best interests to have the vaccine.
What happens if a Deputy or Attorney decides that a person should not have the vaccine and health professionals believe that is in the person’s best interests?
If the dispute cannot be resolved, an application to the Court of Protection will be required to determine what is in the person’s best interests. There may also be situations where a person may not be able to have an injection, due to mental or physical harm. if there is no other way of administering the COVID-19 vaccine, it is recommended that an application to the Court of Protection is made.
In a recent case, the Court of Protection decided that it was in a lady’s best interests to have the vaccine despite her son’s objections. Each case is decided on its facts and in this case, there was evidence that the lady had participated in public vaccination programmes as she had the flu vaccine when she had capacity to make decisions about vaccinations. There had also been a large number of COVID-19 cases in the care home which meant there was a serious risk to the lady’s health.
If you would like any advice about Court of Protection matters or need to make an application to the Court of Protection, please contact ClientServices@wolferstans.com.
Credit and thanks to 39 Essex Street for their extremely helpful guidance.