Fighting Coronavirus – A Discussion on Vaccinations and Mental Capacity

As we begin the first chapter of 2021, I would like to wish our readers a happy, healthy and prosperous New Year! During 2020, we faced immense economic and social challenges, but the new year brings a renewed sense of hope with the rollout of Covid-19 vaccinations across the globe.

As at 4 January, the UK government is beginning its vaccination programme by offering vaccines to those most at risk from Coronavirus being:-

• people aged 80 and over who already have a hospital appointment in the next few weeks;
• people who live or work in care homes;
• health care workers at high risk.

As the situation is fluid, up-to-date information on the programme can be found at https://www.nhs.uk/conditions/coronavirus-covid-19/coronavirus-vaccination/coronavirus-vaccine/.

Naturally, this high-risk category of the most vulnerable individuals may also include wards of the Court of Protection, whose rights and freedoms are protected under the Mental Capacity Act 2005 (MCA). As vaccinations are only administered with the express informed consent of the patient receiving the vaccine, this raises the question of whether or not these individuals retain the requisite mental capacity to provide consent for the vaccination.

The MCA supports those who are suffering with either a permanent or temporary impairment in their cognitive functioning, which may make it more difficult for them to make a particular decision, at a particular time. This includes those suffering from either short-term or long-term conditions, ranging from intoxication to dementia.

The MCA was not altered by the Coronavirus Act 2020, therefore the same five principles for assessing mental capacity apply:

1. Everyone is presumed to have mental capacity until it is established that they do not.
2. No-one is to be judged to lack capacity until all reasonable steps have been taken to support that person to make a decision, and these have been unsuccessful.
3. A person cannot be judged to be unable to make a decision simply because that decision appears unwise.
4. If a person cannot make a decision, then any decision made on her/his behalf must be made in her/his best interests.
5. When making a best interests decision, the least restrictive option – the choice that interferes the least with a person’s freedoms – is the one which must be chosen.

It is possible that an individual who lacks mental capacity for other aspects of their life, such as managing their property and affairs, will retain capacity to make a decision regarding a vaccine, and the relevant assessment should be completed by a qualified practitioner.  The practitioner will need to be satisfied that they have obtained informed consent from the individual before administering the vaccine and that they have the ability to make that specific decision.

If an individual is deemed to have capacity to make a decision about the vaccination, they should be provided with all the relevant information to assist them in their decision-making process. The relevant information is set out in the most up-to-date NHS Standard Operating Procedure document which, at the time of writing, is Version 2 dated 18 December 2020, and can be found using this link: https://www.england.nhs.uk/coronavirus/wp-content/uploads/sites/52/2020/12/C0910-COVID-19-Vaccine-Deployment-in-Community-Settings-LVS-SOP-v2-18-Dec-2020.pdf .  It may be that the relevant information will have to be presented to the individual in a different way (for example, simplified) to ensure that they understand the information that is being relayed.

If an individual is found to lack capacity to make a decision about the vaccination, the following should be considered:

• Has the person made an advance decision to refuse the COVID-19 vaccination (or vaccinations, generally)?
• Does the person have a validly appointed Health and Welfare Deputy or Attorney?

Any advance decision to refuse vaccination would either need to be a previous blanket refusal (whilst the person still had capacity) to receive all/any vaccinations, or a refusal to receive the specific vaccination for COVID-19. The latter would need to have been made before the person lost capacity but after the beginning of the COVID-19 outbreak. If there is uncertainty regarding any aspect of the advance decision, it is likely to be a matter that will require Court input or determination.

Where a Health and Welfare Deputy or Attorney has been appointed, they can make a decision on behalf of an individual lacking mental capacity as to whether or not they should be vaccinated.  The Deputy or Attorney should take account of the individual’s previous wishes and feelings, if those were expressed, and it would be best practice to undertake any decision-making process in consultation with an individual’s wider care team and family members, where appropriate.  Other legitimate factors can also be considered within the context of the best interest decision, such as the risks of not taking the vaccine, both to the individual and others that he/she may come into contact with.  It may be required to appoint an IMCA to advocate and relay an individual’s wishes on the vaccination on the individual’s behalf.  What is important is that any decision is undertaken by reference to the specific individual and their own wishes/feelings, and the relevant facts affecting that person.  It would not be appropriate, for example, for a care home to apply a blanket policy to all residents indicating that each must have the vaccine – the decision should be made individually.

If there is no consensus as to whether or not the vaccination is in the person’s best interests, or if other complications arise, it would be prudent to seek guidance from the Court of Protection for a final determination.

If you would like assistance or advice in relation to a Court of Protection matter, please feel free to give us a call on 0207 940 4000.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*