y Nicola Wainwright, Partner, and Kate Martin, Associate, JMW Solicitors LLP (www.jmw.co.uk)
Whilst Covid-19 vaccinations offer hope to vulnerable care home residents, their availability also raises a number of legal issues for care home owners, including issues of consent to vaccination and the issue of “no jab, no job” highlighted recently in the media.
Legally whether an individual (resident or member of staff) has the Covid-19 vaccination is a matter of personal choice and the provisions of the Human Rights Act, Mental Capacity Act and employment law must be borne in mind.
The European and English Courts have made clear that Article 8 of the European Convention on Human Rights requires that a person’s autonomy to choose medical treatment should be protected and a vaccination is no different to any other form of medical treatment. Therefore, when it comes to vaccinating residents properly informed consent must be sought and given.
Where a resident does not have capacity and so the Mental Capacity
Act 2005 applies a ‘best interests’ decision about vaccination will need to be made on their behalf, involving them as much as possible. If agreement cannot be reached then the Court should be asked to make the decision as a matter of urgency.
The Court of Protection has recently heard three cases arising from the issue of vaccination against Covid-19. In each case a relative of a care home resident, who lacked capacity, objected to them receiving the vaccine.1 In all three cases the Court of Protection ruled that it was in those residents’ best interests to be given the vaccine.
However, the Court confirmed that each decision is person and fact specific. It should not be presumed that vaccination is in a resident’s best interests. That decision should be made according to what that individual would have decided if they had capacity. As the Court put it, it is the resident’s “voice that requires to be heard and which should never be conflated or confused with the voices of others…”.
The Court noted that younger care home residents did not face the same level of risk as the elderly. The news that the Astra-Zeneca (and possibly other) vaccines could be linked blood clots emphasises that a different assessment of risks and benefits are needed for younger residents.
When it comes to staff and vaccination, the “no jab, no job” requirement poses a number of legal and moral questions for an employer who is putting in place this specific type of policy. The introduction of this rule requires careful management and care home owners need to be alive to the risks vs. benefits of placing a blanket requirement on having the Covid-19 vaccine.
From a basic legal position, employers do have the ability to make the Covid-19 vaccination a contractual obligation for new employees, however, it is not as straightforward for existing members of staff.
Whilst there will be a number of compelling reasons to require that all employees who are in roles that involve the provision of care for vulnerable members of society have the Covid-19 vaccine, it is important for an employer to be considerate in its approach, and communication, on this subject and understand the legal risks of such requirement.
A care home owner does have the ability to ask existing employees to have the Covid-19 vaccine, having established a) that it is reasonable to do so; and b) express consent has been obtained from the employee. However, it is unlikely to be justifiable to put this in place as a mandatory obligation.
It would be sensible to document, from a health and safety perspective, why such requirement is justified in the circumstances. If an existing employee was then to refuse the Covid-19 vaccine, again, a health and safety assessment should be carried out in order to assess what risks this would pose in the workplace.
There could be a number of reasons why an employee might not have had the vaccine, for example, not being able to have had the vaccine due to age, medical grounds or for religious belief reasons.
We would recommend that legal advice is sought in this specific situation, before any definitive action is taken, in order to mitigate the associated legal risks, for example, discrimination and human rights issues.