Vaccination & Mental Capacity

Sector leaders have warned that care providers need clearer guidance about the Covid-19 vaccine so they can reassure the people they support, family members and staff, and ensure  Mental Capacity Act (MCA) compliance, as the rollout begins.

There are concerns that a lack of “clear user-friendly information” about the vaccine, including easy-read documents for people with learning disabilities, means it will be a challenge for care home residents and others receiving services to give informed consent to receive the vaccine, and for best interests decisions to be made in cases where a person lacks capacity to consent.

MCA guidance

Last week, 39 Essex Chambers issued a rapid response guidance note on vaccination and mental capacity, which warned against taking a blanket approach and stressed the need for professionals to be given time to carry out capacity assessments and best interests decisions before vaccines are administered.

It states that:

  • If a person lacks capacity to consent to vaccination, and if they have a health and welfare attorney, the attorney/deputy is able to make the decision on the person’s behalf. But if the attorney/deputy refuses the vaccine for the person “there will be a serious question mark as to whether they are acting – as they are required to – in the best interests of the person”.
  • Where there is no attorney or deputy and the person is assessed as lacking capacity the decision will need to be taken by the professionals involved in the person’s care or treatment. In most cases, the professionals will need to draw up a plan for what should be done in the person’s best interests involving all those with an interest in that person’s welfare.
  • Well before the actual date for the potential administration of the vaccine, it will be necessary for those involved to start collating the information required to enable a best interests determination to be made, which will mean consulting with family members (and, where relevant, friends) as those best able to give input as to the person’s wishes, feelings, beliefs and values.
  • There cannot be a blanket decision that vaccination is in the best interests of a group of residents or patients, as this would be contrary to the requirement of the MCA 2005 that it is the best interests of that particular person at that particular time which are determinative.
  • However, it is likely that vaccination would be in the person’s best interests either because it would be possible to say they would have consented had they had the capacity to do so, and, even if it is clear that the person would not wish to receive it, it would be legitimate to consider other factors that may result in the person’s wishes being overridden (though some of these, such as whether the vaccine reduces risk of onward transmission, are not currently relevant).
  • The one caveat to this would be the case where the process of administering the vaccine would cause the person serious distress or harm (for example, if they would not tolerate a needle), in which case the chambers advises seeking legal advice on whether an application should be made to the Court of Protection to decide whether taking the vaccine is in the person’s best interests.

Click HERE to read the guidance note by 39 Essex Chambers and also the rapid response guidance note on testing, available here.

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