COVID-19 Vaccination ' How To Deal With Those Who Lack Mental Capacity

• Published date: 26 February 2021
• Subject Matter: Food, Drugs, Healthcare, Life Sciences, Coronavirus (COVID-19), Government Measures, Reporting and Compliance
• Law Firm: Birketts
• Author: Catherine Frost, Jennie Kingham and Katie Mayes

This is a question many people are asking with the biggest inoculation programme the country has ever launched continuing. The Court of Protection has now made its first decision on the matter in Case: E (Vaccine) [2021] EWCOP 7 (20 January 2021) (Hayden J, Vice President of the COP).

Under the national vaccination programme, vaccines are now being offered to people in order of priority group and deciding whether to have the vaccine or not is a choice for those who are offered.

But what happens where the person is not capable of making an informed decision on whether to receive the vaccine for themselves?

The Mental Capacity Act 2005 (MCA) says that support must be offered with decision-making. Additionally, people must be given information in a way they can understand, this could mean communicating with them during lucid intervals, perhaps at their most alert time of day. The MCA also says that we must assume capacity unless we have reasonable doubt. If there is reason to doubt capacity, this needs to be assessed by an appropriate person, such as a GP, social worker or psychiatrist.

If the person does not have mental capacity to make the decision themselves then a 'best interests' decision about vaccination will need to be made on their behalf, although they should still be involved insofar as possible. Where there is an attorney for health and welfare or a deputy appointed for personal welfare, they should discuss the risks and benefits of proceeding with the vaccine with professionals but it is ultimately the attorney or deputy's decision acting in the person's best interests.

Where there is not a health and welfare lasting power of attorney or deputy for personal welfare, the decision will be made by health professionals in consultation with those closest to the person and those who can comment on what they would have done if they were capable of making the decision themselves. It is imperative that the best interests decision-making must focus on the individual person and include looking at the risks and benefits of them having the vaccine or not, as the case may be.

Under the MCA, the best interests decision must also take into account the person's past and present wishes and feelings. For example, a consideration could be - have they historically agreed to inoculations such as the annual flu vaccine?

What happens where the parties concerned disagree on whether the vaccine should be administered?

In such circumstances, the Court of Protection has...