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Covid, capacity and vaccinations

Around the world people have been celebrating the news that vaccines are on order for Covid 19. The government has published confirmation that a vaccine has been authorised. As anticipated the most vulnerable are on the top of the roll out programme. This includes people living in care homes featuring in group one of the vaccination programme.

Aside from the logistical problems of storage and transportation we are being advised that vaccines will be available for 8 December 2020. Hospital hubs are being set up to manage the vaccination programme. Local authorities are being asked to compile lists of care homes and help the NHS fill vaccination slots and arrange transport to facilitate vaccinations.

Care home staff are being asked to pull together staff lists, provide appropriate evidence they work in the care sector, keep records of vaccinations and allow staff to be released to ensure their staff can be effectively and efficiently vaccinated.

The more complex issue revolves around the vaccination of care home residents. This is going to be a very complex exercise as each resident needs to give their consent to being vaccinated as each resident has to sign a consent form to receive the vaccination.

At all times it will be necessary for care providers to follow the Mental Capacity Act and therefore the five principles of the Act, starting with the presumption that a person is presumed to have capacity unless it can be shown otherwise. The home will need to speak to each resident in turn and provide them with all information which is necessary for the resident to make a decision about vaccination. This means they need to be told what Covid 19 is, how the illness could affect them, what the vaccination is and how it could affect them, the good and bad points with the vaccination, who has prescribed the vaccination and how it is going to be administered to them, any side effects to having the vaccine and what happens if the do not have it.

This information needs to be presented in a way that the resident will understand. It may be through sign language, pictures, use of different language. It is only once all practicable steps have been taken to provide information to that resident can be deemed as lacking capacity to make the decision themselves. This is in line with the second principle.

For those residents who have capacity to make the decision there may be some who decide that they do not wish to receive the vaccine. Following the third principle of the Act a person with capacity can make an unwise decision if they wish. Just because the care team at the home may think not receiving the vaccination is unwise as long as the resident has capacity and has been presented with all the facts they can choose to refuse it.

Of course, any vaccination must be in the best interest of the resident, in line with principle four of the Act. This could be the most difficult decision of all. How are the competing interests of different residents going to be viewed by the care home as it may not be in all resident's best interests to have the vaccine?

And finally, the fifth principle of the Act involves action being taken in a way which is the least restrictive for a resident.

Homes are going to need to speak to each resident and families of residents about the vaccination. They simply cannot go ahead and blanket vaccinate every resident.

Where it is determined that a resident has capacity to make a decision about vaccination they will be able to sign their consent form as long as they have been provided with all the information they need to make an informed decision.

Where a resident lacks capacity to make the decision about vaccination a whole different process has to be followed. If there is a health and welfare lasting power of an attorney the care home will need to consult with the attorney(s) to make the decision about vaccination. The attorney(s) will need to be provided with all the information about the vaccine, the process and the impact it will have on the resident to enable them to make the decision. Where a resident does not have capacity to make the decision then a decision will need to be made in their best interests. This will involve all involved with the individuals care discussing what it best. It would be safe to assume that the decision maker in this situation would be the nurse/care team dealing with medication.

This throws up a number of questions which have not had to be be dealt with before as there has been no mass immunisation process in recent years.

  • What happens if a resident or family member refuse consent to be vaccinated?

  • Will no vaccination have an impact upon that resident's ability to stay in the are home?

  • The vaccination decision has to be made in the best interest of each resident. How do you deal with conflicting best interests?

  • Is there going to be pressure put on residents and families to agree to vaccination?

  • How will the vaccination be administered to someone who is refusing an injection?

  • Will we see care homes changing terms of occupancy to include a need for vaccination?

As with everything that Covid 19 touches it has a profound impact on the way we live our lives and even with a vaccine it is clearly going to continue to do so. Whilst we may not know the twists and turns that are to come as a result of this virus we can do all we can to make sure that decision making power sits with those who know us best.

At Argo we are always telling our clients how important it is to make sure that they have health and welfare lasting powers of attorney. Care homes, Covid and vaccinations just demonstrate once more how vital these documents are for future decision making. For those who cannot make a health and welfare lasting power of attorney it is important to consider the need for a health and welfare deputyship order through the Court of Protection.

It is really important that you keep your voice and ensure that your thoughts, feelings and wishes are followed. The best way to do that is to take control and put in place measures to give the power to those you trust for a time when you cannot say what you want.

If you would like to discuss the topic contained in this article please call the Argo team on 01622 843729.

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