The NHS COVID-19 vaccination programme is seen as a crucial part of the government's strategy to bring COVID-19 under control, with vaccines now being administered across the country.
It is imperative that consent is obtained (or a capacity assessment and best interests decision made) before a vaccine is administered to any person.
This blog addresses how decisions should be made about the administration of vaccines for vulnerable adults who lack the relevant mental capacity to consent to the vaccination.
This could apply to all vulnerable adults with disabilities, including those in care homes with a diagnosed mental impairment, such as dementia.
When offering a COVID-19 vaccine to a person who may lack the mental capacity to consent, relevant professions should take all practicable steps to support the person to make the decision for themselves.
Where it has been established that a person lacks capacity to consent (a capacity assessment must be undertaken if there are any doubts about this), an individual best interests decision should be made in accordance with the best interest checklist set out in section 4 of the Mental Capacity Act 2005. This means that the relevant professionals will have to decide whether they reasonably believe that receiving the vaccination is in the person’s best interests.
In line with section 4 of the Mental Capacity Act 2005, the decision-maker must consider all of the relevant circumstances, including the person's wishes, values and beliefs, the views of their family members, advocates and those with Power of Attorney (where appropriate) and what the person would have wanted if they had the capacity to make the decision for themselves. The person's past views could be obtained from family, friends, carers or anyone else who has an interest in their welfare (such as, for example, their GP).
What is made clear by Hayden J in the case of E (Vaccine)  EWCOP7 is that when considering best interests, the focus is on the person receiving the vaccine, rather than the views of others interested in their welfare (consideration being given however to those views that could elucidate the persons likely decision).
This can be seen in the more recent case of Re CR  EWCOP 19, where HHJ Butler ruled that a vulnerable man with severe learning difficulties should be given a COVID-19 vaccine, despite his family's objections. The family's objections were said to be founded on a love for their son and a wish to ensure that he comes to no harm, however had no clinical evidence base.
It may be difficult to see how a person receiving the COVID-19 vaccination would not be in a person’s best interests, however, it may not be if (for example), the injection is likely to cause the vulnerable adult significant distress, especially where there is a lack of understanding of the purpose of the vaccine. The best interest’s analysis to be undertaken by professionals would need to weigh the advantages and disadvantages of receiving the vaccine. Further, should an adult lacking capacity be objecting to the vaccine, but lack the relevant capacity to consent (due to a condition such as dementia or learning disabilities), consideration may need to be given to how administration would be achieved (including whether any restraint would be required and whether this would be proportionate).
A situation may arise where agreement cannot be reached in relation to whether the vaccination is in the person's best interests. In such instances, legal advice should be sought as to whether an application to the Court of Protection is required.
If the person has an attorney or deputy with the relevant authority, consent must be obtained from them before the vaccine can be administered. If the attorney or deputy refuses, it is likely to be questioned whether they are acting in the persons best interests and, unless they change their position, an application to the Court of Protection to decide the issue may be required. Unfortunately, loved ones are not able to simply provide consent on the person's behalf.
As emphasised by Hayden J in the case of SD v Royal Borough of Kensington and Chelsea  EWCOP 14, when an issue arises as to whether somebody should receive the vaccination, the matter should be brought before the court expeditiously, if it is not capable of speedy resolution by agreement.
Should you require any advice or assistance in respect of the above issues, please do not hesitate to contact us on 01616 966 229 and our team of specialist mental capacity and Court of Protection solicitors may be able to assist. Legal aid funding is available subject to eligibility.