As you will be aware, the health and social care sector (like others) is working hard to maintain essential services in what are extremely challenging times. Whilst the manner in which many of us work is being adapted in line with current Government and Public Health England guidance, it is recognised that much of the work we undertake can’t simply just stop. So, there is a balance to be had between ensuring, as far as possible, the wellbeing of everyone (especially vulnerable people) and maintaining vital services. I am committed to maintaining as many of the services I provide throughout this period of uncertainty whilst acting responsibly to help ensure the safety of those I work with, vulnerable people and their carers.

To this end, until further notice, the following will apply:

Where possible, I will assess and consult people using non face-to-face methods such as Skype and telephone calls. Sometimes this is not possible and, in those situations, where safe to do so, I will continue with a face-to-face approach. If this is required, current Government guidelines will be followed. Whichever method will be adopted will depend entirely upon the nature and urgency of the work and will be discussed with the instructing party and care providers where applicable.

I wish you a safe and healthy time as we work together over the coming months,

Best Wishes, Gary.

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Tel: 0203 617 1255

Consent, Mental Capacity, Best Interests and COVID Vaccines in Care Homes

Yesterday, we woke to the news that one of the COVID-19 vaccines has been approved by the Medicines and Health products Regulatory Agency (MHRA).  We also heard that The Joint Committee on Vaccination and Immunisation (JCVI) have advised that care home residents (older adults) will be among the first to be offered the vaccine as early as next week.  This is wonderful news and hasn’t come a minute too early for thousands of care home residents and staff.  Also for care home managers who have been working tirelessly since April to keep the virus at bay and safeguard the lives of those entrusted into their care.

If reports are correct and the first batches of the vaccine are indeed starting to make their way towards care homes, now is the time for managers to start considering whether their residents can consent to the vaccine.   But what happens if a residents can’t consent to having the vaccine?  Should they have it anyway for the greater good?  Is it assumed that every care home resident should have it?  Is it assumed that no care home residents should have it?

If a person can consent to a decision, such as having the COVID-19 vaccine, then the decision is theirs to make.  They may require assistance to find all the information they require to make the decision, but they won’t need others to decide on their behalf.  As with other decisions, they might take advice from family and friends, but ultimately, the decision is theirs to make.  However, if a person lacks the mental capacity to make this decision then one of 2 things generally happen.  First, if a Lasting Power of Attorney or Deputy has been appointed for health and welfare decisions, if this decision falls within the remit of their appointment, they can make the decision on behalf of the person in their best interests.  If however there is no such attorney or deputy, or the decision doesn’t fall within the remit of their appointment, then the wider provisions of the Mental Capacity Act will need to be followed by the decision-maker who is likely to be the care home manager or a representative of the care home because they are the people who usually administer medication.

Fundamental Principles of Mental Capacity

When deciding whether a person can make a health and welfare decision such as whether to have the COVID-19 vaccine, the decision falls within the framework of the Mental Capacity Act.  The overriding principle of the Act is the presumption of capacity.  Everyone should be treated as though they have capacity to make this decision unless it can be demonstrated that they can’t.  As the decision-maker, the burden is upon you to explain why the person can’t make this decision because of an impairment to their mind or brain.  The person themselves doesn’t have to ‘prove’ they have capacity.  Further, residents shouldn’t be assessed as lacking capacity to have the COVID-19 vaccine until all steps have been taken to help them make this decision themselves.  This may include having a family member nearby (or virtually) for support, writing information down, using additional methods of communication, repeating information or selecting the best time of day to speak to them.

Relevant Information

When assessing whether a person has the capacity to make a decision, the questions are asked, “Can they understand, retain and weigh-up the relevant information?”.  Also, “Can they communicate  the decision back to you by any means?”  It is paramount therefore to know what the relevant information is in the context of the COVID-19 vaccine (as it is with all decisions).  Without defining what information is relevant to this particular decision, it is impossible to conclude that a resident lacks capacity to make it.  It’s as ludicrous as offering you some medication without an explanation of what it is or why I’m offering it to you.  When we consider the relevant information required to make this particular decision, the following relevant information might be used as a minimum.  Although, because assessments are decision-specific, other relevant information may also be appropriate:

  • Why the medication is required: It will help protect the person from COVID-19
  • The medication has been prescribed by a health professional and will be administered in either 1 0r 2 injections depending on which vaccine is used
  • Any side effects of taking the medication are detailed on the specific vaccine information sheet
  • The consequences of not taking the medication: They will not be protected from COVID-19

As with any decision, it isn’t necessary for the person to understand, retain and weigh up every single aspect of the medication such as where it is made, who makes it or the specific ingredients (unless of course there are allergy concerns).  Although we know that this first batch of COVID-19 vaccines is made by Pfizer BioNTech in Belgium, I would suggest that it is quite unusual to know this much about any medication.  Usually, we are content knowing that it has been prescribed by a trusted health professional for a specific purpose.

When considering the consequences of not taking a particular medication, we often only consider the health benefits to the person.  Will this be different when you assess residents’ capacity in relation to the COVID-19 vaccine?  I haven’t seen any as yet, but will new care home contracts and policies state that admission is only possible to those who have had the vaccine to safeguard the other residents and staff?  Could a consequence of not taking the medication be environmental as well as physical?

Unwise Decisions

Another fundamental principle of mental capacity is that people should be free to make unwise decisions.  It isn’t acceptable to conclude that a resident lacks capacity to decide whether to have the COVID-19 vaccine because they make a decision that appears unwise.  When we make any decision, we add certain weight to different pieces of information.  When you assess residents’ capacity to make this decision, they may not add the same weight to each piece of information as you do.  It’s important to remember that you’re not assessing whether they have added weight to the right pieces of information, only whether they can understand, retain and weigh-up the information and communicate it back to you.  For instance, if I were a resident in your care home, I may place great weight on the consequences of not taking the medication because it may affect the future of my placement, it may place others at risk and so on.  Another person might not place as much emphasis on that and instead place greater value on why the medication is needed.  Neither are wrong and as individuals, we all have different moral, ethical and religious frameworks within which we live.  Assessing mental capacity is about the process of decision-making not the reasons why decisions are reached.

What Next?

If vaccines are starting to arrive next week, now is the time to make sure that either your residents can consent to the vaccine, someone can consent on their behalf (LPA or Deputy for Health and Welfare decisions) or a mental capacity assessment and best interests decision is made.  A decision such as this one requires a robust mental capacity assessment and best interests decision and should never be a tick box exercise or blanket policies made that everyone should have the vaccine regardless.  When making best interests decisions, the person’s current and previous views should always be taken into consideration.

How can I help?

I know how hard care home managers work and admire the incredible efforts that have been made during the COVID-19 pandemic, often at great personal cost.  Sometimes, mental capacity assessments are less of a priority than other aspects of running a care home and are reduced to a tick-box exercise or, in some instances, don’t exist.  This can’t be the case for such a fundamental decision as the COVID-19 vaccine.

If you’ve struggled with mental capacity assessments in the past, or they haven’t adhered to the principles of the Mental Capacity Act, I can offer a special COVID-19 vaccine mental capacity assessment consultancy service. Typically, I would only offer a half or full day training session which can be quite costly, particularly for smaller care homes.  In addition to formal training sessions, I am now offering a new service to care homes.  A 90-minute consultancy service for just £149.  This will include a Zoom video call to provide advice and expert opinion about your COVID-19 mental capacity assessments and assist you to identify the salient points that should be considered.

This will not only help you with COVID-19 vaccination mental capacity assessments, but it will also give you the transferable knowledge to complete all other mental capacity assessments.   In addition, if required, I will provide a mental capacity assessment template full of tips and advice that you can adapt or just add your logo to the template and and use for all of your mental capacity assessments.

To take advantage of this special offer, just click on the button below to pay and I will be in touch to arrange a suitable time for our video consultation.


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