Vaccines, mental capacity and best interests – an update

Just before Christmas, the Department of Health and Social Care updated its guidance: The Mental Capacity Act 2005 (MCA) and the deprivation of liberty safeguards (DoLS) during the coronavirus pandemic: additional guidance, to include a new sub-section – “Offering a vaccine to someone who lacks the relevant mental capacity”.

In an earlier post, we discussed Covid-19 vaccinations and mental capacity following the Government announced roll out of the first vaccines to care homes residents. You can read our post here.

The updated guidance explains that where it has been established that the person lacks capacity to consent, an individual best interests decision should be taken in line with the best interest checklist in section 4 of the MCA.

In short, this means that the decision-maker, such as a healthcare professional offering the vaccine, must consider all the relevant circumstances, including the person’s wishes, beliefs and values, the view of their family and what the person would have wanted if they had the capacity to make the decision themselves.

As with any best interests decision, the nominated decision maker will be required to record their best interests decision – or in default, the person’s advocates or those with power of attorney for health and welfare should be consulted. If there is a deputy or attorney with relevant authority then consent must be sought from them to be able to make a decision.

The guidance also provides that decision makers “may want to consider the benefits of vaccines to the individual’s health and potential alignment with a decision the person may have taken themselves if they had the relevant capacity”.

Equally, regard must be given to the impacts of administering the vaccine which may inform a decision that receiving the vaccine may not be in the individual’s best interest. Examples given, include where administering the vaccine would be significantly traumatic, or where the decision to receive a vaccine would not be one the individual would make, if they had capacity.

Do get in touch if you require support with any of the issues discussed – we have a friendly and expert Court of Protection team ready to help.

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