Keoghs Insight

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Terry Zindi

Terry Zindi

Partner

T:01204 677187

COVID-19: Now and beyond

Client Alerts05/01/2021

The development of a vaccine for the COVID-19 virus has been a welcome one for most of us. It promises a return to some semblance of normality after a difficult year. The government have indicated their intent to roll out a mass vaccination programme, with the most vulnerable in our society being one of the earliest groups targeted.

Residential and nursing homes have been especially affected by COVID-19, both in respect of the extent and rate of transmission, and the number of deaths arising from or associated with the virus.

This article is intended as a general discussion considering how any vaccination programme might be implemented, under the guiding principles of the Mental Capacity Act (MCA).

As a starting principle, consent to vaccination will be required from a care home resident. Under the MCA all service users resident within a care home should be deemed to have capacity to consent to medical treatment such as a vaccination, unless there is evidence to suggest that they do not have the capacity to do so.

Capacity is specific to both the time and nature of the decision to be taken and, in this respect, care home residents will require special consideration. A resident’s capacity might fluctuate – an example being a resident suffering from dementia. Also, an assumption cannot be made that just because someone does not have capacity to, for example, make decisions on where they reside, that they are therefore unable to consent to a vaccination. 

The DHSC (Department for Health and Social Care) have produced guidance for COVID-19 testing and there are some clear parallels that can be drawn from this advice. In the first instance, all practicable steps should be taken in supporting the person to make the vaccination decision for themselves. This may include the manner in which the information is given. It is necessary to explain both the benefits and any known risks when assisting the person in question to make the decision. If a person’s capacity fluctuates, then it is prudent to delay any decision until such time as capacity is regained. This decision should be documented.

However, if this is not possible or is unsuccessful, then it may be appropriate to make a best interests decision under the MCA.

It is important to establish whether there is an individual with a Power of Attorney or a court appointed deputy able to make decisions on behalf of the service provider. In addition, the views of the service user’s family or carer ought to be obtained and consideration of the best interests checklist.

It is important to stress that any blanket or group decision regarding residents within a care home would be inappropriate. Each best interests decision must be individual and specific to the person, even if the circumstances of a group of residents are broadly similar.

In Aintree v James [2013] UKSC 67, the Supreme Court stated:

“… decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be; and they must consult others who are looking after him or interested in his welfare, in particular for their view of what his attitude would be.”

It remains important to encourage the resident to be involved in the process as far as possible.

The list of what constitutes best interests is broad. It ought to align with the decision a reasonable person in society might be expected to take and can include consideration of the well-being of others.

Where vaccination is felt to be in the resident’s best interests, but the patient resists it, then it may be necessary to restrain the patient. The MCA makes clear that restraint must only be used to prevent harm to the patient. It is necessary to justify the use of any restraint and it must be shown to be necessary and proportionate. Clearly, restraint and forced vaccination will be a last resort. Such a step must be carefully documented. There will be circumstances where the resident might experience significant physical or mental trauma from a forced vaccination and, in those circumstances, it will unlikely be in that person’s bests interests to proceed.  

Any vaccination programme will require advance and careful planning. It will be vital that any residential or nursing care home has taken the appropriate steps in respect of consent or authorisation, with the involvement of the resident, carers, family and health professionals where applicable. Clearly no programme should be rushed through without due consideration.

With suitable measures in place, any pitfalls can be successfully navigated.