Article by Rhodri Owen, Solicitor and Head of Private Client at GGP Law.
Where a person lacks mental capacity to consent to medical treatment, decisions can be made for them. In 2021, tens of millions of people in the UK will receive one of the Covid-19 vaccinations. The Social Care Institute for Excellence estimates that 2 million people in the UK lack capacity. Many of those who lack capacity will be elderly and in the priority groups for vaccinations.
Vaccinations are seen as non-emergency treatment. In the absence of a Lasting Power of Attorney (Health & Welfare) or a Deputyship Order (Personal Welfare) then a Best Interests decision needs to be made under s.5 of the Mental Capacity Act 2005. A decision-maker, who in this case would be the medical professional working for the NHS who are administering the vaccinations, can make a decision for someone who they believe lacks mental capacity provided that they take reasonable care to ensure that the decision is in that person’s best interests.
How are best interests decided?
Best interests are decided according to s.4 of the Mental Capacity Act 2005: https://www.legislation.gov.uk/ukpga/2005/9/section/4
Under s.4(6), a decision-maker must take account of:
(a) the person’s past and present wishes and feelings (and, in particular any relevant written statement made by them when they had capacity),
(b) the beliefs and values that would be likely to influence their decision if they had capacity, and
(c) the other factors that they would be likely to consider if they were able to do so.
As such, we can’t assume that the same decision would be made for every person, and there’s no scope for blanket decisions. The decision is personal to that individual, and may account for religious or other beliefs. A medical professional may take the view that the treatment can’t be authorised even if it were for the public good (although they could ask whether the individual would have taken the public good into account).
How we can help:
The situation emphasises the need to plan ahead. If the person lacking capacity has a Lasting Power of Attorney in place dealing with Health and Welfare decisions this would avoid some of the difficulties as an Attorney can make a decision for the person who has lost capacity, including for vaccinations. Lasting Powers of Attorney can only be created before a person loses capacity so it’s important to have these in place in case they are needed.
Alternatively, if a person has already lost capacity and a dispute arises as to whether someone should be vaccinated, an application can be made to the Court of Protection to determine the issue.
At GGP Law, we are able to assist and advise clients with preparing Lasting Powers of Attorney and Advance Decisions, and with Court of Protection applications.
For more information, please contact a member of our Private Client team on 01685 871133 or firstname.lastname@example.org.