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16th December 2020

Vaccination, consent, and capacity in a care setting: How to decide?

At last, the first approved vaccine is here and is being rolled out first to vulnerable people in care homes and the staff who care for them. We need to be clear about how decisions must be made for each individual, about whether or not they should be given it. The new forms for care home vaccination decisions are a great help with collecting and organising essential information.

What does someone need to know?

For any medical procedure, everyone needs enough information (simply presented) to decide whether to accept it or refuse. For deciding about having the vaccine, the relevant information includes:

The Anticipated Benefits of Vaccination

From a week after the second dose, these include reducing very greatly the likelihood of severe illness or death if exposed to COVID-19 and hence opening up chances of mingling and mixing with relatives, friends, and the wider community.

The Likely Side Effects from Vaccination and any Individual Risks They May Run

As with other vaccines, possible side effects include fleeting pain from a jab with a needle and a day or two with a sore arm, headache or mild fever. And it’s also relevant that there will be two jabs, and you won’t be protected from the worst effects of COVID-19 until a week after the second one. Vaccination won’t be a magic wand for those longed for Christmas get-togethers.

We also know that the NHS has identified special risks to anyone who has suffered an anaphylactic shock in the past. This group should not have the Pfizer BioNTech vaccine, but wait for information on other vaccines which are likely to be safer for them.

The Downsides of Refusing the Vaccination

These include living with the existing risk of serious illness or death from COVID-19, and needing to take precautions, such as avoiding relatives and friends, for quite some time to come. Unvaccinated people are likely to be more restricted in access to some settings in the future than those protected by the vaccine.

If Someone has Capacity and Consents to – Or Refuses – the Injection

Many residents in care homes have capacity to decide this for themselves and are very keen on the vaccine. Do make sure, though, that individuals do understand and that they do consent - it is up to them.

To help them decide, ask them to read (or read to them) the letter and consent form from the Government, which records their decision whether to consent or refuse. If some people supported by adult social care clearly understand, remember and weigh the information about accepting or refusing the injection and still refuse to have it; this is their right, just as it is for everyone else. Some people are very dubious about vaccines.

If a Person Lacks Capacity to Consent or Refuse

Start by doing all you can to ensure that they understand the information about the jab. This is, after all, the heart of the Mental Capacity Act (MCA); that you don’t accept someone as lacking capacity for a decision unless you’ve done everything practical to help them gain the capacity for this. If the person definitely lacks capacity to make the decision about whether or not to have the jab, it becomes a best interests decision.

No Blanket Decisions

 It may be that for all those people you support who lack capacity, this vaccination is indeed in their best interests. It will keep them safe and enable gradual easing of restrictions on freedom and mingling. But it is essential to consider each individual separately. The vaccination forms from Government are a great help here to collect the right information.

A Quick Swerve into the Legal Position

If the person has made an advance decision to refuse treatment (ADRT) that says they refuse consent (say, to all vaccines, ever) this is binding unless they have changed their mind with capacity, perhaps when we were hit by a pandemic. If the picture is confused – does it cover this situation? Did they change their mind? Get legal advice.

If there’s a relative or friend with powers under a health and welfare lasting power of attorney (LPA), they are likely to have the right to ‘stand in the person’s shoes’ and make this best interests decision for the person. If so, they are also likely to agree the vaccination is in the person’s best interests. Government has helped here by providing a form to record attorney's consent or refusal.

If there’s no LPA or advance decision, the person giving the injection in the absence of consent needs to be sure that they believe the person lacks capacity for this decision, and that what they are doing is in the best interests of the person. They can of course assess everyone for themselves, but it’s customary that they rely on a plan, outlining the capacity assessment and best interests decision.

Individual Decision-making and Recording

The role of ‘next of kin’ gives no rights to relatives or friends without LPA powers to make these decisions, but they know the person better than paid staff ever can and love them more, so their insights into what the person would want are of massive importance. Again, the government has helped here, by providing a form to record relatives' views.

It is often clear that the person has always accepted vaccines, and would have accepted this one if they had capacity. This makes it easy to say it’s in their best interests, because the option of vaccination is one that aligns so well with this person’s known values and wishes.

If it clearly isn’t the case, it may still actually be in the best interests of this individual, although they might have refused it. The value of dodging the COVID-19 bullet and regaining more normal access to relatives and the community is clear; for most people the side effects are insignificant, and they will accept the jab with equanimity.

If the person needs restraining for the injection, the restraint must be a proportionate response. In the case of any restraint other than the mildest and most fleeting, record the decision-making carefully, consult widely, and if in doubt - take legal advice. This is particularly true if the person is showing passionate distress linked to the prospect of vaccination.

 

*All information is correct at the time of publishing. Use of this material is subject to your acceptance of our terms and conditions.

Rachel Griffiths

Mental Capacity and Human Rights Specialist

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. Read more

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