By Jonathan Landau, barrister at 5 Essex Court (www.5essexcourt.co.uk)
Vaccinations of care home residents have begun. In 2013 the Alzheimer’s Society estimated that 70 – 80 percent of care home residents have dementia. Given the consistent trend of residents being admitted to care homes later in life and with more complex needs, that figure may now be higher. Some, though not all, of those residents will lack capacity to make the decision as to whether they should be vaccinated. How should care homes and care staff approach the issue?
On 10 December, the NHS published a Standard Operating Procedure titled ‘COVID-19 local vaccination services deployment in community settings. It included, as Appendix D, an operating model for providing local vaccination services in care homes. The SOP, and in particular Appendix D, was significantly updated on 18 December, so care home providers and managers should ensure they are following the latest ver- sion and regularly check for further updates.
The key message is that providers are expected to help facilitate consent, but are not themselves responsible for best interest decisions. The updated Appendix D asks care homes to carry out ‘provisional’ assessments at least four days before vaccinations and to group residents into three broad categories:
• Those who are likely to have mental capacity to consent
• Those who have or may require a Legal Power of Attorney (LPA) to consent on their behalf. Although not expressly stated, it would of course make sense to include anyone with a Court of Protection appointed deputy covering healthcare decisions into this category.
• Those who may require a best interest decision to be made on their behalf.
In order to do that, it will be necessary to have a working knowledge of capacity. There are two elements of not having capacity:
1. An impairment of, or a disturbance in the functioning of, the mind or brain; and
2.Being unable to make a decision because of that.
A person is unable to make a decision under the Mental Capacity Act if they are not able to do one or more of the following:
1. Understand the information relevant to the decision,
2.Retain the information long enough to make the decision,
3.Weigh up the information, and
4.Communicate the decision.
Information relevant to the decision is likely to include that the vaccination will reduce the chances of contracting the virus, which is a seri- ous, life-threatening illness. It will also include information that vaccinations are not 100% effective and there may be some side effects which are mild and should not last longer than a week. The side-effects are set out helpfully here: https://www.nhs.uk/conditions/coronavirus-covid-19/coronavirus-vaccination/coronavirus-vaccine/
Care homes must remember, however, than under the Mental Capacity Act, a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken with- out success. Consideration should be given as to what steps, if any, could be taken to help residents make the decision themselves.
There are standard letters and consent forms to be provided to any residents with capacity available here: https://www.gov.uk/government/publications/covid-19-vaccination-consent-forms-and-letters-for- care-home-residents.
For those without consent, care homes should identify whether resi- dents have LPAs in place covering health and care. Check if they are joint (which would require all LPAs to consent) or joint and several (in which case one LPA would suffice, though it would be sensible to obtain views of all). Again, there are standard letters and forms available on the link above.
For those without capacity or LPAs, the decision-maker will need to make a decision in their best interests. The decision-maker in this case is the clinician who will administer the vaccine NOT the care home provider or its staff. However, the link above has forms and letters to be sent to relatives if it is appropriate to consult them. It is sensible that care homes do as much as possible to line up the information the deci- sion-maker will require on the day so discussing the issue with appropri- ate family members and others is to be encouraged.
There may be isolated cases where those with capacity or LPAs refuse vaccinations, or family members object, possibly due to misinformation or scepticism. Such cases should be identified early. Managers should share information about the benefits of vaccinations but without exerting pressure that might affect the validity of the consent. Advice should be sought as early as possible in any cases of conflict or if there doubt about capacity or best interests.
Jonathan Landau is a barrister at 5 Essex Court who has extensive experience of advising care homes about mental capacity, inquests and regulatory matters. Landau@5essexcourt.co.uk