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Mental Capacity and COVID-19 Vaccines

COVID-19 vaccine for those lacking capacity

More than 4 million people in the UK have now received their first dose of the COVID-19 vaccine. However, deciding whether to have the vaccine or not is a choice for individuals.  Many people classed as high priority to receive the vaccine, such as those with dementia or living in care homes, may not be able to decide for themselves.

What is capacity?

Capacity is time and issue specific. This means that just because someone lacks capacity to make decisions in one area of their life, does not mean that they lack capacity to make all decisions. Therefore, it is important for professionals to take all practicable steps to support a person to make the decision for themselves wherever possible. This involves explaining what the vaccine does, likely side effects, any risks involved and how the vaccine will be administered. Information should be communicated in a way which will best support the person to understand what is being asked.

Best interests decision

Where a person has been assessed as lacking capacity by an appropriate professional then a ‘best interests’ decision about the vaccine will need to be made on their behalf. If the person has a power of attorney for health and welfare (someone appointed to make decisions on their behalf) then the attorney will make the decision. Otherwise, the professionals involved should consult with anyone caring for the person or interested in their welfare before deciding what is in the person’s best interests.

Section 4 of the Mental Capacity Act 2005 sets out a checklist of what must be considered when making a best interests decision on behalf of a person who lacks capacity. As far as reasonably practicable, the person should still be involved in the decision-making process and consideration should be given to the person’s past and present wishes and feelings. The decision maker should take into account all the relevant circumstances and also record how they reached their decision.

A best interests decision should always be person specific and based on individual circumstances. For example, where residents in a care home lack capacity, the care home should not introduce a blanket policy towards the vaccination of residents. Instead decisions to vaccinate residents should be based on the individual best interests of each resident.

The Court of Protection would only become involved if there is a disagreement between those concerned with making the decision about what is in a person’s best interests.

Contact Us

We are here to help. Our experienced court of protection team specialise in health and welfare matters and are able to meet with you via telephone or video call to discuss your case.  Our team are Dementia Friends and Solicitors for the Elderly accredited.

Please contact our court of protection team by email or by calling 0191 232 9547.

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