Covid-19 vaccinations, capacity & consent

The Covid-19 vaccination rollout is the biggest inoculation programme the country has ever undertaken. Uptake of the vaccine has far outreached expectations, with more than 19 million having received at least one jab, and more than 700,000 a second.

Yet, it must not be overlooked that for many people the question of whether to have the vaccination is a decision that they may not be able to make for themselves.

Last week welcomed the news that a further 150,000 adults with a learning disability are to be prioritised for vaccination.  The decision followed campaigns by charities and advocacy organisations who highlighted the increased risk to adults with learning disabilities posed by Covid-19; a campaign which gained marked momentum following DJ Jo Whiley’s public pleas on behalf of her sister, Frances.

If you are a parent, carer or relative of someone with a learning disability or someone living with dementia you may find yourself confronted with difficult emotional and legal decisions;

Can I give or refuse consent on behalf my loved one? How should I go about it? What can be done if I disagree with a decision on vaccination?

• The legal position is governed by The Mental Capacity Act 2005 (MCA). The MCA says that we must assume capacity unless we have a reasonable doubt. If there is a reason to doubt capacity, then this should be assessed by an appropriate person (such as a GP or specialist doctor).
• If a person has capacity to decide for themselves, they can choose whether to have the vaccination. They must give informed consent. The decision is theirs and must be respected, even if others consider it unwise.
• If a person is currently unable to make decisions for themselves but has in the past completed a legal document known as an Advance Decision which gives or refuses consent to vaccinations, then the starting point is that this will be binding.
• If a person is currently unable to make decisions for themselves but has appointed a health and welfare attorney through a registered Lasting Power of Attorney (LPA), the attorney can take a decision, acting in the person’s best interests.
• Before an attorney makes this decision, consideration should be given to all the relevant circumstances including the person’s wishes, beliefs and values, the view of their family and what that person would have wanted if they had capacity to make the decision themselves. An attorney must understand that, what is in another’s best interests, might conflict with their own personal views on vaccination.  It would be advisable to start collating views and information well before the proposed date of vaccination, to consult with the donor if possible and family members or others able to input on the person’s feelings and to keep full records.
• The risk of catching Covid-19, the benefits of regaining access to relatives and the community and the wider benefits to others are all factors which should be taken into account and are likely to inform a best interests decision to receive a vaccine, even if an individual might have declined vaccines in the past.
• In some cases, there could be concern that the injection itself would cause serious distress and this will need to be carefully considered. In circumstances where neither an Advance Decision nor a LPA has been made, an individual ‘best interests’ decision will be taken by the healthcare professional. It is usual that this will be based on a plan drawn up and, hopefully, agreed by everyone interested in the individual’s welfare.
• If an attorney is inclined to refuse vaccination, is unable to reach a conclusion as to whether the vaccination is in the person’s best interests or a relative disagrees with the healthcare professional’s view or there is disagreement between co-attorneys, then legal advice should be sought. Consideration will need to be given as to whether an approach to the Court of Protection is required to resolve the matter.

The Court of Protection has now ruled on the first case concerning capacity and best interests in relation to the Covid-19 vaccine. The case concerned an 80 year old woman living in a care home in which there had been a number of cases of Covid-19. Whilst her son objected to her being vaccinated, the court ruled that the vaccine was in her best interests. In particular, the decision took into account the potential risk to her health and safety, as well as her previous record of receiving vaccinations in line with public health advice.

For all of us, whatever our current personal and family circumstances, this serves as a stark reminder of the vital importance of putting appropriate legal documents in place ahead of time.  Contrary to common belief, the role of ‘next of kin’ gives no rights to relatives or friends without a valid LPA in place. Sadly, your family could find that they have little influence over decision making on your behalf. 

If you would like specialist advice on putting LPAs (or Advance Decisions) in place contact a member of the firm’s Private Client team.  The firm’s Litigation team are also here to advise or represent you if you are concerned about a vaccination decision for a loved one.