The Government has this week released guidance regarding people who lack mental capacity and how consent is given for them to receive the COVID-19 vaccine. The new guidance impacts those who need support when making decisions for themselves and for those who have decision making authority for a person who lacks capacity to consent, through a lasting power of attorney (LPA) or deputyship order.
For someone to receive the COVID-19 vaccination by a medical professional, they must be able to consent before it is administered and the individual must understand, retain or communicate:
The benefits of the vaccine in the simplest terms
The likely side effects and risk of the vaccination
What happens if they do not consent to the vaccine
Consent cannot be given if the individual lacks mental capacity. However, a lack of mental capacity to consent should not stop a vaccine being offered.
What happens if the individual lacks mental capacity?
When it’s apparent that an individual does not have mental capacity to consent to the vaccine, healthcare professionals must clarify if:
A relevant Court of Protection Order (generally this is a deputyship order, but it might be an order of the court about this specific issue) or
A Lasting Power of Attorney (LPA) for Health and Welfare is in place
If there is an appointed deputy or attorney assigned to the individual, then they are likely to be the decision maker. This person should be contacted and asked whether the vaccine should be administered to the individual in their care. The healthcare professional or individual administering the vaccine must consult them first.
Information on registered LPA’s and deputyship orders can be found here.
Making the decision regarding consent for the COVID-19 vaccination
The attorney or deputy does not have to consent to the vaccine being administered. However, if the health care professional does not agree with this decision they may find reason to contest and may seek legal advice from the NHS legal body.
When making the decision If you should consent to the vaccine on behalf of an individual, you should consider what their wishes would be if they were able to make this decision for themselves.
To ensure you are contacted for consent on behalf of an individual, you should:
If the person lives in a care facility, tell the facility they must contact you for a decision in advance
If the person lives alone, contact the local vaccination team to ensure you are contacted for a decision before the vaccine is given
The healthcare professional can only administer the vaccine if you have given your consent.
As an attorney or deputy, you do not need to attend the vaccine appointment. If you have given your consent on behalf of the person, someone else can take them to the vaccine appointment with your permission.
What happens if they do not have an lasting power of attorney or deputyship order?
If the person who lacks capacity to consent did not appoint an attorney through an LPA or if a deputyship order has not been made, a best interest’s decision will likely be taken by the person administering the vaccine.
Consent for the vaccine can only come from the individual, or a health and welfare attorney or deputy. The vaccinator will not seek consent from a family member on the basis that they are ‘the next of kin’, or the holder of a property and financial affairs LPA/deputyship, to administer the vaccine.
Without an LPA/deputyship, the individual may risk not receiving the COVID-19 vaccine.
How can an attorney or deputy be appointed?
You can assign an attorney to make decisions for you by creating a lasting power of attorney. An LPA is a legal document that enables a person you trust, such as a family member or otherwise, to make important decisions about your health and welfare and/or your financial affairs on your behalf, should you be unable to make these decisions due to the loss of mental capacity.
If a person does not have an LPA, and decisions need to be made on for them as they have lost mental capacity, you can apply for a deputyship order which will formally allow you to look after that persons affairs if granted.
You can find more information on both lasting powers of attorneys and deputyship orders, and how to arrange them, here.
To discuss your specific situation with our wills, trusts and probate teamyou can call our enquiry team and make an appointment. We offer fixed fees on most of our matters and flexible appointments to suit your needs. If you can’t make it into the office, we offer telephone appointments.