Whether it’s preventative or treatment, consent must always be sought from a person receiving a medical intervention. That consent should be given by the person themselves or, in the case of a minor, by a parent or guardian.
So what happens if the patient is an adult who lacks the mental capacity to give that consent? Who can give, or indeed refuse to give, consent on their behalf? The rollout of the Covid-19 vaccine has bought this question into sharp focus as the government attempts to offer protection to those at greatest risk from the virus, some of whom are affected by other medical issues such as Alzheimers Disease or dementia which can impair the ability to give the required consent.
Mr Justice Hayden considered this question at a hearing in the Court of Protection recently. The patient, a care home resident in her 80s who lives with dementia, had been invited to receive the vaccine as part of the vaccination programme. Her doctors considered, in line with government guidance, that it was in her best interests to receive it. However, her son raised an objection believing that she should wait until there is “more evidence” that the vaccine is effective.
Mr Justice Hayden sided with the doctors. He agreed that the patient was at “very high risk”, that receiving the vaccination was “in her best interests”, and that it “should be administered as soon as possible”.
So who can consent to receiving the Covid-19 vaccine on behalf of an adult with dementia when they cannot give consent for themselves?
Any arrangements put in place prior to the onset of dementia could be the answer. A valid Lasting Power of Attorney for Health & Welfare gives the patient’s attorneys the power to make this decision by applying the “best interest” criteria. All such decisions may be subject to different guidance so there is no set provision for how this should be done, but steps should be taken, as far as possible, to seek the patient’s own views and to consider any views they expressed prior to losing mental capacity. Medical or care advice and the views of those close to the person should also be sought.
In the case of the Covid-9 vaccine the views of a GP and carers, along with general medical advice and government guidance, would all be relevant factors in delivering a “best interests” decision.
Where the person does not have an attorney for health and welfare the decision should be made by health professionals in consultation with the person’s next of kin and in line with Mental Capacity Act Best Interest decision making guidance.
It is, of course, likely that a decision made by a health and welfare attorney to refuse the vaccine on behalf of a patient would be challenged by health professionals in the court of protection if that decision was made without going through a best interest decision making process.