By Ashley Partridge, Head of Wills, Probate & Estate Planning, Parker Bullen solicitors (www.parkerbullen.com)
THE MENTAL CAPACITY ACT
The Mental Capacity Act is essential when dealing with those individuals that may be losing or have indeed lost capacity to make important decisions for themselves.
Under the Act, a person is considered to be incapacitated to make a particular decision if he or she suffers from an impairment of the mind or brain, and that impairment makes them unable to reach decisions on their own. This could apply when a person has trouble understanding or retaining information.
Where a person is considered to be incapacitated to make a particular decision, a decision may need to be made on their behalf. The Act states that the decision must be one that is made in their best interests.
So, who can make the decision on their behalf? This depends on whether there is a Health and Welfare Lasting vaccine or not.
Whilst a person has capacity, they are entitled to refuse the vaccine. It may be that this decision is objectively an unwise one, especially if they are in a high risk category for Covid-19. However, the fact that an individual is making an unwise decision does not mean that they are incapacitated to make that decision. Both an LPA and the healthcare professional’s powers should not be used to override a person’s decision whilst they retain capacity.
If an individual has lost capacity, it may be that the administration of the Covid-19 vaccine seems to be in the individual’s best interest. There are a few things to consider before coming to that conclusion.
Healthcare professionals, close family members and the medical history of the individual should be taken in consideration. For example, if an individual had never received any vaccinations before, or was strongly against the vaccination this should be taken into account when evaluating their best interests.
It is possible for an individual to make an advanced decision to refuse treatment. This decision must be appropriately recorded and be specific to the treatment that they wish to refuse. Where an individual has denied certain treatments whilst having capacity, it would be good practice to ask whether they wish to make an advanced decision regarding that treatment to ensure that if they ever lost capacity, their decisions would be respected.
PRACTICAL TIPS FOR CARE HOME MANAGERS
– ASK Ensure that all residents consider whether they wish to put in place an LPA. Many people value the knowledge that if they lost capacity, someone that they trust would be making decisions on their behalf. This is particularly relevant if a resident is likely to lose capacity in the short to medium term.
– ASK Where relevant, ask residents if they would like to make an advanced decision. This can make attorney’s decision making easier in the future and can give the resident peace of mind.
– RECORD Keep a record of who the attorneys are for each resident. Keep their contact details on file so that they can be contact quickly in the case of emergency. Similarly, keep a record of their advanced wishes, easily accessible in the case of emergency.
– INFORM Keep attorneys informed and up to date. Lay out clearly their powers and duties and any considerations that they should especially have (such as advanced decisions, healthcare professionals’ advice, previous medical history and choices).
USEFUL RESOURCES FOR CARERS
LPAs and the COVID Vaccine – https://publicguardian.blog.gov.uk/2021/02/08/lasting-power-of-attorney-and-the-covid-vaccine/ LPAs and attorney duties – https://www.gov.uk/lasting-power-attorney-duties/health-welfare Making decisions on behalf of someone – https://www.gov.uk/make-decisions-for-someone/making-decisions