The pandemic has brought into focus many legal and ethical issues. One such issue is the Best Interest decision for those individuals who lack capacity to decide for themselves whether they should have the COVID-19 vaccination.
A number of vaccination cases within the Court of Protection have emphasised the court’s position that the Best Interests decision-making process for an individual who lacks capacity, and importantly, is assessed as someone who is clinically vulnerable to COVID-19, should be followed with urgency, in order for any matters that require judicial oversight and decision-making to be brought to the court as soon as possible.
Public bodies, in particular, have been heavily criticised in cases where there has been a delay in bringing an application before the court. This remains the case even as the restrictions imposed by the government have been withdrawn. This criticism is likely to extend to organisations who are aware of individuals who have not had the vaccination, where the Best Interests process is required to determine whether a vaccination should be administered to them, and this has not been followed or flagged with the relevant public body.
The first step to take is to contact the GP to whom the individual is registered. A capacity assessment will need to be completed specifically surrounding an individual’s ability to make the decision for themselves to have the COVID-19 vaccination. If the individual is assessed as lacking capacity to make such a decision, the Best Interests process must then be followed as quickly as possible.
Those involved in the individual’s care, as well as family members and friends, will form part of the Best Interests meeting. For those who are providing day-to-day care, the paramount concern will be any wishes and feelings that have been expressed to them by the individual, as well as the social impact not having the vaccination would have on the individual’s daily life, and any care needs they are aware of that would be impacted by having or not having the vaccination. If those caring for the individual are aware of any dissenting views within the organisation, these have to be voiced within the Best Interests meeting with clear reasoning provided.
An application to the Court of Protection as the ultimate decision maker on behalf of the individual is required where there is any uncertainty or disagreement as to the best interests of the individual to have the vaccine. The court will often be keen to know what the risks to both the individual’s care and health will be in weighing up the decision, this includes considering the impact in a holistic manner, to include an individual’s past wishes and feelings towards vaccinations and health interventions as a whole. Additionally, it is becoming more pressing to know from care providers whether an individual has contracted COVID-19 previously, the impact this had on them and their health needs.
Quite often those who provide day-to-day care for the individuals involved will be required to provide a statement and therefore must be prepared to give oral evidence in court if they are requested to do so. Significant weight can be given to the information provided by those who are part of the care provider and often have the most detailed knowledge of the individual from their day-to-day interactions.
As a firm, we have been heavily involved in bringing cases when there is a dispute surrounding best interests to the court for judicial determination. It is increasingly important that no individual slip through the net in having their best interests surrounding COVID-19 vaccination considered.
As leading experts in this area of law, we can offer advice and support regarding the whole process, including the required steps for a Best Interest decision to be made, what must be done in order to uphold the individual’s rights and freedoms, alongside advice and representation where an application to the Court of Protection is required if a dispute arises.
For further information, please contact:
Rachel Kelly-Brandreth, Hill Dickinson