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COVID-19 vaccination: lacking capacity to consent

Post date: 20/09/2021 | Time to read article: 3 mins

The information within this article was correct at the time of publishing. Last updated 23/09/2021

As the vaccination programme against COVID-19 continues in the UK, the usual laws around patient consent still apply. But what if your patient lacks capacity to consent? Dr Jayne Molodynski, Medicolegal Consultant at Medical Protection, offers advice and guidance

A patient’s capacity to consent is decision-specific and time-specific. An adult patient is to be presumed to have capacity and this presumption is not to be rebutted solely because of disability or apparent inability to communicate.

Any attempts to assess the capacity of the patient should be recorded, along with the outcome of any such assessment.

Where an adult patient lacks capacity

Having recorded that the patient lacks capacity to consent, a key starting point from the GMC’s guidance, Decision making and consent, is:

“(Paragraph 88) If you are the treating doctor, before concluding that it is your responsibility to decide which option(s) would be of overall benefit to a patient who lacks capacity, you should take reasonable steps to find out:

  1. whether there’s evidence of the patient’s previously expressed values and preferences that may be legally binding, such as an advance statement or decision
  2. whether someone else has the legal authority to make the decision on the patient’s behalf or has been appointed to represent them.”

Regarding (b), this may relate to someone who has lasting power of attorney in relation to health and welfare for the particular patient. For more information about lasting power of attorney please see our guidance: Mental Capacity Act 2005 – Lasting Powers of Attorney – England and Wales.

In the event you or a colleague disagree with the decision of any individual with said authority, the following steps to resolving disagreements should be followed.

You or your colleague should identify whether the individuals involved  have been granted this authority by the Office of the Public Guardian (OPG) by discussing this with them, or otherwise contacting the OPG.

If neither of the two above scenarios are applicable in your circumstances, the GMC guidance states:

“(Paragraph 89) If there is no evidence of a legally binding advance refusal of treatment, and no one has legal authority to make this decision for them, then you are responsible for deciding what would be of overall benefit to your patient.

“In doing this you must:

  1. consult with those close to the patient and other members of the healthcare team, take account of their views about what the patient would want, and aim to reach agreement with them
  2. consider which option aligns most closely with the patient’s needs, preferences, values and priorities
  3. consider which option would be the least restrictive of the patient’s future options.”

In view of the above, the views of the individuals involved are not to be dismissed but taken into account alongside the views of others close to the patient and who provide them with treatment and care, such as care home staff. This may also include discussing with the family members to assure them of the safety of the vaccine and the comparative risk if not provided to the patient.

Enough time should be allowed for such “best interests” discussion (GMC, Decision making and consent, paragraph 91) where possible. This should factor in the impact of any increased risk of contracting COVID-19 by allowing such time, for example, if there have been cases within the patient’s care home if relevant.

Where there are disagreements in either situation described above, the GMC guidance states:

“(Paragraph 92) Sometimes members of the healthcare team disagree about what would be of overall benefit to the patient, or those close to the patient disagree with you and the healthcare team. It is preferable, and usually possible, to resolve disagreements about a patient’s treatment and care through local processes.

“For example, by:

  1. involving an independent advocate or local mediation service
  2. consulting a more experienced colleague and/or an independent expert
  3. holding a case conference or seeking advice from a clinical ethics committee.

“(Paragraph 93) If, having taken these steps, there is still disagreement about a significant decision, you must follow any formal steps to resolve the disagreement that are required by law or set out in the relevant code of practice. You must make sure you are aware of the different people you must consult, their different decision-making roles and the weight you must attach to their views. You should consider seeking legal advice and may need to apply to an appropriate court or statutory body for review or for an independent ruling. Your patient, those close to them and anyone appointed to act for them should be informed as early as possible of any decision to start legal proceedings, so they have the opportunity to participate or be represented.”

It is also worth noting that the majority of approaches to the Court of Protection are made by the local authority, the CCG or the hospital Trust. It is therefore important to liaise with the relevant parties if such an application is being considered. A number of cases involving COVID-19 vaccinations have been heard at the Court of Protection; however, as they are very fact specific, further approaches may be necessary for individual cases.

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