Do I have the right to refuse the Covid vaccine on behalf of a relative? Chris Partington, Partner and Head of Private Client at Slater Heelis, discusses the requirement for a Lasting Power of Attorney (LPA) to direct the well-being of a venerable loved one:
In the coming weeks, the first 800,000 doses of the Pfizer Covid-19 vaccine will be given to elderly and vulnerable members of society based on the government’s priority list of recipients.
However, some health and welfare needs of some elderly and vulnerable people are decided by an attorney appointed under their permanent mandate.
Therefore, someone with permanent power of attorney on behalf of a relative might decide to refuse the vaccine on moral grounds and at the request of their loved one, or to accept it in their best interests.
Chris said: “In order for everyone to be able to make formal decisions about another adult’s health, they should have a permanent Health and Welfare Authority (LPA). It is widely believed that a person’s next of kin can make health care decisions on their behalf if they are no longer able to make their own decisions. Unfortunately, this is not always the case.
“When the vaccine is introduced, health and welfare LPA holders will have to decide whether to vaccinate disabled relatives. This can be an especially difficult decision for advocates for anti-Vax believers.”
What constitutes mental incapacity?
“A person is incapable of having their mind compromised or disturbed in any way such that they cannot make decisions at that point. Incapacity for work is not always a permanent condition as people who are overly drunk are considered incapacitated. In general, the inability to make decisions is characterized by failure to understand, remember and use information about the decision, or to communicate the decision.
“The Mental Capacity Act (MCA) applies to individuals aged 16 and over and aims to protect and empower people who are unable to make their own decisions. Classic examples of people who may be lacking in capacity are dementia sufferers, severe learning difficulties, brain injuries, mental illnesses or unconscious people. However, people are not considered incapable of working just because they have one of these conditions. “
Can I treat a sick relative as unable to work if they refuse the vaccine despite their best interests?
“The MCA runs a two-step capacity test that asks if people have an impairment in their mind or brain, and if that impairment means they cannot make that specific decision when they need to.
“The law states that people cannot be treated as incapacitated simply because they make an ill-advised decision and are only considered incapable of making decisions if they cannot understand, retain, and weigh information as part of the decision-making process.
“Unless the attorney and health care professionals really believe that a person cannot make such a decision, you shouldn’t use LPA to override their decision to refuse the vaccine.”
Do I have to take your wishes into account?
“When someone is mentally retarded, in most cases health care providers and family members can make all health decisions for them. This means that if you are an LPA holder for someone who has refused vaccinations for the rest of their life, you should take this into account when deciding whether vaccination is their best interest.
“The only time that this may not be the case is when someone has made a preliminary decision to decline treatment (ADRT) or living will prior to incapacity. However, the wording of the ADRT must be specific and refer to medication or vaccinations. An ADRT informs caregivers, family members, and health professionals about a person’s desires in the treatment they are receiving. If someone’s ADRT specifically tells them they don’t want to get any vaccinations, attorneys should uphold their decision. “
What if there is no LPA?
“In the absence of a health and welfare LPA, all health and social care decisions for those who lack sufficient mental abilities are made by health professionals. Such decisions, made on behalf of individuals unable to provide consent, are carefully considered to determine which steps are in their best interests.
“With the Covid vaccine, it is likely that vaccination is in a person’s best interests to protect them from the virus, especially if they are older, have health problems, or live in a nursing home.
“One of the steps that is taken to determine the best interest is to consider whether it is safe to wait and see if they have the capacity to involve the individual as much as possible in the decision-making process, and friends, family, or an independent lawyer Consult for mental abilities to determine what that person would have wanted. “
What should I do if my relative is likely to be unable to work in the near future?
“If you have a relative who is likely to deteriorate in the months ahead, having a health and welfare LPA drawn up while they are sane is a wise idea. There has been a lot of health emphasis this year, and the pandemic has lasted longer and had more impact than expected.
“With an LPA, you can decide who is in control of your health and welfare decisions in the event that you cannot make them yourself in the future.”
Slater Heelis is a full service law firm based in the North West. To find out more about the permanent power of attorney regarding the Covid vaccine or to speak to the Private Client team about general life planning later on, visit the website or call: 0161 969 3131.
About Slater Heelis
Slater Heelis LLP is a full service law firm with offices in Sale, Timperley and downtown Manchester providing a range of legal services including corporate, employment, personal, residential and commercial property law, family law, private client and criminal law .
More information is available at www.slaterheelis.co.uk.
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