Can my decision to refuse to allow my sister who lacks capacity to have the COVID-19 vaccine be overruled? | QCS

My sister is lacking metal capacity and is severely autistic. She currently lives in supported accommodation. I am being pressured for my sister to take the vaccine, but I chose not to allow my sister to have the COVID-19 vaccine due to her health history. Can they overrule my choice for her human rights? How will I contest this? She has an advocate and I am next of kin. I have had a discussion but the advocate isn’t forthcoming and I am happy to take legal action.

Rachel Griffiths
Answered by Rachel Griffiths

Many people who devote time and energy to the wellbeing of a close relative, such as you clearly do for your sister, might encounter this kind of issue, about a wide range of health or care decisions.

You may be surprised to learn that a close relative, even one who is regarded as someone’s next of kin, has no automatic rights to make decisions on behalf of another adult who lacks mental capacity.

Decisions are made, when necessary, in the person’s best interests, using a process laid out in the Mental Capacity Act 2005 (the MCA). For more about this, see text of the MCA in particular sections 4 and 5, and the MCA code of practice, especially chapter 5.

You do, however, as explained in the MCA and code of practice, have the right to be consulted about decisions affecting the well-being of your sister. This is because you are clearly someone who cares deeply about her, and know her very well, and know her history. In the words of the MCA, you are someone ‘interested in her welfare’ (MCA s.4(7)(b)).

The person who must consult you would be the professional responsible for whatever treatment is proposed. For example, it might be the GP who will authorise or give the vaccination if it is seen as being in your sister’s best interests to have it. And the consultation must be real, in that your views must be properly heard, and considered, in reaching a decision about whether this jab is in your sister’s best interests.

Of course, as we’ve been reminded by authorities as varied as the UK Supreme Court and the Rolling Stones, we can’t always get what we want. And this is very true of decisions about vaccination, a topic that generates passionately held views, both for and against.

This vaccination, which has been given to many millions of people now, is generally accepted as being extremely safe, and far less likely to harm someone than infection with COVID-19 would be. Since vaccines became available, it seems that an overwhelming majority of decision-makers have studied government guidance and decided, though always on an individual and person-centred basis, that it is in the person’s best interests to have the vaccine rather than risk infection with COVID-19. See  specific government guidance on vaccination and government additional guidance. People with complex disabilities are at particular risk if they develop COVID-19, and this has been weighed against the extreme unlikelihood of serious complications from the vaccination.

You do not say why you think this vaccination would not be in your sister’s best interests, but you mention her health history. The decision about her vaccination, like any other health or care intervention, must be a personalised one, based on everything that is known about her. If you are aware of any reason why you think this vaccination is especially bad for her as an individual, I suggest you ask for a second medical opinion about this and explain your reasons for doing so.

Where there is a dispute about the best interests of someone lacking capacity, for example between relatives and medical practitioners, and the way forward cannot be decided by agreement, the decision will, in the last resort, be made by the Court of Protection. You might be interested in a case that came to court about COVID-19 vaccination discussed here.

You mention that you’re willing to take legal action and this remains an option, if you and those providing healthcare for your sister cannot agree on whether she should have the vaccination, even after reference to the guidance suggested above. Before consulting a solicitor experienced in MCA work, I would strongly recommend that you, and those providing healthcare and social care for your sister, and her advocate, should try informally to reach a course of action, in her best interests, that is acceptable to you all.

About Rachel Griffiths

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made.
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