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Libby Holding is investigating a recent court case as to whether or not a nursing home patient with dementia should receive the Covid-19 vaccine against her son’s wishes
We continue to live in a world where the Covid-19 pandemic is touching almost every element of our lives, with plenty of media activity surrounding the current national lockdown and the launch of the largest vaccination program in UK history.
Of course, the speed at which the vaccinations were developed and approved has drawn some attention, both in view of the incredible scientific achievement that has been achieved and from others who have concerns about the reliability of the tests being carried out and the possible ones Side effects of a new vaccine against a relatively new virus with constantly evolving variants.
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During the pandemic, one thing was certain: the elderly, especially those living in nursing homes, appear to be particularly vulnerable to the effects of the virus. Understandably, therefore, they are a priority group to get the vaccine as soon as possible. But what happens if the person does not want to receive the vaccine themselves or if they are unable to make that decision for themselves? Who determines whether or not to receive the vaccine?
This question was examined by the courts in a recent case * involving an 80-year-old nursing home resident (“Ms E”) who unfortunately suffers from dementia. In early January 2021, it was announced by the local authority that Ms. E should be offered a Covid-19 vaccination. However, Ms E’s son refused. The court was quickly asked to consider whether it would be lawful and in the best interests of Ms. E to receive the vaccine under the relevant sections of the Mental Capacity Act 2005.
As part of the legal process, Ms. E’s general practitioner conducted a brief capacity assessment asking her about both her thoughts on the coronavirus pandemic (which she couldn’t remember) and her wishes for a vaccination, to which she responded “Whatever is best for me”. After the judge determined that Ms. E could not make the decision herself, she checked whether receiving a Covid-19 vaccination was in her best interest.
Considering that Ms. E had willingly received a flu vaccine as well as a swine flu vaccine prior to being diagnosed with dementia, he found that Ms. E, if she had the capacity, had chosen to vaccinate according to public health recommendations. She had also put her trust in the general practitioner by stating that she would want the best for her.
As a “person interested in the welfare of Ms. E,” the judge had to take into account the views of Ms. E’s son who objected to the vaccination. He was deeply skeptical about the vaccine, the speed at which it was approved, whether it had been adequately tested, and whether his mother’s real desires and feelings had been adequately appreciated. However, Ms E’s son also gave indications that he did not object to the vaccination in principle: only that he did not consider now was the right time for his mother to receive it.
The balance the judge had to examine on behalf of Ms. E was the real risk to her life from the virus and the unidentified possibility of an adverse reaction to the vaccine. The judge concluded that under Ms. E’s circumstances, particularly considering the various vulnerability factors such as her age, ongoing medical problems and the fact that the nursing home she was staying in had positive cases of Covid-19 , a “A real and significant risk to her health and safety if she did not get the vaccine”. As such, he stated that it was in their best interest to have it as soon as possible.
No permanent power of attorney is mentioned in this case, but this is a shining example of a situation where, if Ms. E had made an LPA for her health and welfare decisions prior to the loss of capacity, she would have had a designated attorney, be it her son or her another person of their choice who could have made that decision on their behalf. Again, this procedure and the resulting delay in administering the vaccine to Ms. E could have been avoided.
It also reminds us all that it is important to check if there are any medical treatment-related circumstances that would make you feel strong either way. For example, whether or not you would like to be vaccinated according to public health recommendations.
In this case, these circumstances should be adequately recorded within an LPA in good time before a possible loss of capacity, so that the subjective character of the “best interest” test can be avoided by your lawyer or by medical professionals on you or your customer name.
Libby Holding is Legal Services Director at APS Legal & Associates – part of the SimplyBiz Group