This article specifically applies to people over the age of 18 and living in England. 

The roll out and administration of the two Covid-19 vaccines may raise questions about how a best interests decision should be made if someone lacks or may lack capacity to consent to receiving the vaccine and what to do if someone refuses the vaccine.

Capacity

As with all decisions about care and medical treatment, in order to make a decision about having the covid-19 vaccines a person must have the mental capacity to make that decision.  

Under the Mental Capacity Act, if there is some doubt as whether a person has the mental capacity to consent to being vaccinated, then a capacity assessment should be carried out. As with all decisions, in order to be deemed to have capacity, a person should be able to understand, weigh up, retain and communicate the relevant information about the decision they are making. Specifically in relation to vaccination, the following is considered to be relevant information:

  • The anticipated benefits of the vaccination in the simplest terms;
  • The likely side effects from the vaccination and any individual risks; and
  • The disadvantages/ potential risks of not consenting to the vaccine.

In order to support someone to make a decision about the vaccine, Public Health England have also suggested that the relevant information will include information about what administrating the vaccine will involve and when it will be administered.

If someone is assessed as having capacity to make this decision, then there is no legal power requiring that person to undergo vaccination.

What if someone lacks capacity?

However, if a person is found to lack capacity, then a best interests decision about being vaccinated must be made on their behalf. There are several points to consider when a best interests decision is made. First of all, is there a specific person, such as a health and welfare attorney/ deputy who can consent on their behalf or does the person have an advanced decision relating to vaccinations?

If there is no specific person, then a decision-maker must be established, which will depend on the situation in which the administration is taking place.  Often the ultimate decision-maker will be the person administering the vaccine itself. It is therefore helpful to have a plan drawn up in advance of the vaccine being administered, which is agreed by all relevant persons, including close relatives/ friends.

When making a best interests decision, the following reasons may lead to a conclusion that being vaccinated is in the person’s best interests:

  • If it can be identified that the person would have consented, if they had capacity, i.e. ‘what would they have done’; or  
  • If there are other factors that may override the person’s wishes, such as the risks of contracting Covid-19.

If it is likely that a person will need to be restrained (not just physically) for the vaccine to be administered, then there must be a reasonable belief that it is necessary to vaccinate in order to prevent harm to the person and the vaccination is proportionate to the likelihood of the person suffering harm and the seriousness of that harm.

As the public health benefits of the vaccine (rather than the benefits to the individual) are not fully known, these public health benefits should not form part of the best interests decision. When that information becomes available, as it is likely to, then that may form part of the decision, i.e. would the person want to consider the benefit to others around them as part of their decision. It is likely all people will want that. Similarly, at present, a person not being vaccinated will not impact on their access to services or buildings and as such should not form part of the best interests decision.

A blanket policy cannot be in place to vaccinate all residents of a particular setting, for example a care home. Decisions must always be made on an individual basis.

Generally speaking, someone lacking capacity to make a decision about having the vaccine does not automatically trigger the need for IMCA involvement. IMCA involvement may be required where having or not having the vaccine is considered serious medical treatment. This is likely to be the case where the simple administration of the vaccine would “involve serious consequences for the patient” or “there is a fine balance between its benefits to the patient and the burdens and risks it is likely to entail”. 

When to seek legal advice

Legal advice should be sought in the following situations:

  • Where the process of carrying out the administration of the vaccine would cause harm, for example where someone is needle phobic and there is no other way of administering the vaccine.
  • Consensus amongst the relevant persons cannot be reached about whether vaccinating is in the person’s best interests. 
  • If a deputy/ attorney is refusing vaccination on behalf of a person and it is unclear whether they are acting in the person’s best interests.

This article has been drafted by our Human Rights & Public Law Team. Find out more about our work and how we can support you