With the rollout of the COVID-19 vaccine across the world, early signs of recovery from the biggest health crisis in a generation are beginning to show. Among the first groups to be offered a Coronavirus vaccine are the elderly and those with neurodegenerative diseases. In the UK, the vaccine is optional – rather than mandating that all citizens must receive one, the government seek to encourage people to have the vaccine to help society return to normal. Deciding whether or not to accept the vaccine is a choice for those offered it to make themselves – of course, where individuals lack the relevant mental capacity, the right decision isn’t always clear cut. The following guide aims to help those in social care settings to make best interests’ decisions for or on behalf of people who lack the relevant capacity to choose whether or not to have the vaccine in the context of the COVID-19 pandemic.
What is the Mental Capacity Act 2005 (MCA)?
The Mental Capacity Act exists to protect vulnerable people who may lack the mental capacity to make decisions for themselves on issues relating to their care and treatment. It covers day-to-day decisions such as what a person should buy in their grocery shop to life-changing decisions regarding their healthcare. The MCA says we must always support decision making and attempt to provide people with as much information as possible in a way that they can understand. It also states that capacity must be assumed unless we have reasonable doubt.
In this case, the individual should be assessed by their GP or a specialist to determine whether or not they have the mental capacity to make decisions. If it is determined that they do not have sufficient mental capacity to do so, a “best interests’ decision” can be made on their behalf.
The NHS has published an SOP for COVID-19 vaccine deployment in community settings outlining the process for making best interests decisions. People without capacity, if they are aged 16 or over, are protected by the empowering, decision-making framework set out under the Mental Capacity Act 2005 (MCA) -but the principles of best interests’ decision making under the MCA are the same for the COVID-19 vaccination:
- Health care professionals offering the vaccine to someone who may lack the mental capacity to consent should take all practicable steps to support the person to make the decision for themselves.
- Where it has been established that the person lacks capacity to consent, a best interests’ decision should be taken by someone else in line with best interest checklist in section 4 of the MCA.
What if someone lacks capacity to consent for the vaccine?
If a person under your care is deemed as lacking the capacity to consent for the vaccine, your first step should be to do all you can to communicate the information about the jab. Lead with the clear facts and present the information in a way that is as easy to understand as possible. This could be a simple case of communicating the information at a time in the day that they are the most alert and responsive. This step is crucial to adherence with the MCA; that you don’t accept someone as lacking capacity for a decision until all avenues to help them gain the capacity to do so have been exhausted. Only at this stage can a best interests’ decision be made.
Objectively speaking, it may be the case that for those people you are supporting, protecting them from the Coronavirus is in their best interests. A vaccine will lower the risk of them catching the disease and becoming seriously ill. Further, it will enable easing of restrictions and therefore allow them to see more of their loved ones safely. Regardless, it is critical that no blanket decisions are made and that each individual is considered separately.
What if someone has made an advance decision to refuse treatment?
If someone in your care has made an advance decision to refuse treatment (ADRT) that references a refusal of all vaccines, this is binding unless they have since changed their mind while still having the mental capacity to do so. If they have a friend or relative who has been granted powers under a lasting power of attorney, this individual will be responsible for making a best interests decision for the person. If you aren’t certain whether or not an advance decision covers the COVID-19 vaccine, it’s best to seek legal advice from a specialist solicitor and consult their GP before making a decision.
Need a helping hand from our legal experts? Don’t hesitate to get in touch for a free consultation with a member of our team today.