The legal position where adults do not have mental capacity to consent to the Covid vaccine

The issue of whether parental consent has any bearing on children of ages 12-15 being administered the COVID-19 vaccine has dominated headlines in recent weeks. With head teachers receiving letters containing legal threats from concerned parents who say that they will take legal action if their children are vaccinated without parental permission, there are clearly discussions to be had around legal consent and vaccinations in certain groups of people. There are some established legal principles when it comes to children consenting to medical treatment separate to their parent’s wishes, but what about where it is an adult who does not have mental capacity to consent to medical treatment?

Children’s consent and Gillick competence

Government guidance for schools who are offering the vaccine in the school-based COVID-19 vaccine programme reads that while parents will be asked to provide consent via a form, ‘Young people who understand fully what is involved in a proposed procedure, such as vaccination, can legally give consent. This is known as ‘Gillick competence’.’

The Government guidance shows that in a situation where a parent objects to their child being vaccinated but the child is found to be Gillick competent and still wants to be vaccinated, healthcare professionals will aim to bring about an agreement between the parent and child – but ultimately, ‘the parent cannot overrule the decision of a Gillick competent child.

‘Gillick competence’ is a legal test which is used to determine whether someone under16 can consent to medical treatment without the consent of their parents or whoever has parental responsibility for them. It comes from the 1987 case Gillick v West Norfolk and Wisbech Area Health Authority, which was decided in the House of Lords, and ruled that under-16s could be prescribed contraceptive medication without parental consent. In this case, Lord Scarman formulated a test that is now thought of as the standard test to determine ‘Gillick competency’, which is that the child needs to be able to have ‘sufficient understanding and intelligence to understand fully what is proposed’. If the child is found to be ‘Gillick competent’, they will be able to consent to their own medical treatment without the consent or knowledge of their parents – if not, someone with parental responsibility can consent for them.

‘Gillick competence’ is now a standard used not just for contraceptive medication, but across the board to determine whether a patient who is under 16 can consent to any sort of medical treatment without their parents’ consent or knowledge.

Adults who do not have mental capacity to make medical decisions for themselves

We can start by looking at the general rule: medical professionals have an obligation to respect the patient’s autonomy, and all competent adults have a right to make informed decisions about their own medical care. However, where the patient does not have the mental capacity to make their own decisions about their medical treatment, other people can make these decisions on their behalf. Unlike with children who are not Gillick competent, the decision to consent to treatment will not by default be made by the parents of the person who lacks capacity.

Mental capacity is the ability to make decisions about things that influence our lives. If someone is found to not have capacity to make their own decisions about their medical treatment, then a decision will need to be made in their best interests, giving consideration to their welfare.

For someone to be assessed as lacking mental capacity, it must first be proven that they are suffering from an impairment or disturbance in their mind or brain – for example, a mental illness, or Alzheimer’s disease Not every person who has these conditions will be found to lack capacity. The second stage in the assessment is that it must then be shown that the impairment or disturbance stops the individual from being able to make the decision in question. It will be assessed whether the individual can understand the information relevant to the decision, whether they can retain this information when making a decision, whether they can use and weigh the information in making their decision and whether they can communicate their decision in any way. If they cannot do any of these steps, then they will be assessed to not have mental capacity. In relation to medical treatment, the person responsible for assessing if the individual has mental capacity is usually the healthcare professional administering the treatment.

Where patients do not have the capacity to consent to the treatment, then a decision may need to be made on their behalf. The law states that this decision must be made in the patient’s ‘best interests’. The decision-maker will usually be the person caring for the patient day-to-day or the person responsible for administering the treatment, for example the doctor or other healthcare staff responsible for a certain procedure. In some cases, where someone has made a lasting power of attorney or has a Court of Protection deputy responsible for making welfare decisions, then that person may be the decision maker.

A ‘best interests’ analysis will take into consideration relevant factors such as: how far the incapacitated person can participate in the decision, whether they are likely to regain capacity, their past and present wishes and feelings, any beliefs and values that they have that might impact such a decision, and the benefits and burdens of the decision.

Sometimes the individual who lacks capacity will have made an ‘advance decision’ to refuse certain medical treatments while they were still a competent adult.

Adults without capacity and consenting to the COVID-19 vaccine

Where an adult lacks the mental capacity to decide whether they want to have the Covid-19 vaccination, a health and welfare attorney or deputy may be able to consent on their behalf. Alternatively the incapacitated adult may have made an advance decision refusing all vaccinations.

Ifthere is no advance decision and no deputy or attorney, the relevant professionals (usually healthcare professionals) must decide if administering the vaccine to the person is in that person’s best interests.

These decisions must be taken on a case-by-case basis and must consider the best interests of the individual – a blanket decision that a vaccination is in the best interests of a group of patients will be contrary to the Mental Capacity Act 2005.

The Court of Protection have said in recent cases that they strongly advise seeking legal advice about whether to approach the Court of Protection if there is not a clear consensus on whether vaccination is in the person’s best interests. Where it is not possible to identify the person’s wishes and feelings, the judge may consider factors that the person would be likely to consider if he or she were able to: for example, both generic information about vaccines, as well as specific information about the person’s own situation and the risks to them if they contracted Covid.

In some cases, even if it is clear that the incapacitated adult’s wishes would be not to receive the vaccination, it may still be found to be in their best interest to have it – therefore their wishes will be overridden. This might be if there was a particularly high risk to the individual if they were to contract Covid.

However, if there is low risk and evidence that the individual would have declined the vaccine had they had capacity, the judge can find that it is not in the persons’ best interests to have the vaccine.

Other recent cases have shown that factors such as the person’s level of fear towards needles or potential need for restraint while receiving injections will also be considered. These may lead the court to decide that the vaccine is not in the person’s interest if it will cause them a disproportionate amount of discomfort and stress.

If there is an attorney or deputy refusing vaccination on the person’s behalf, and those involved consider that they are not acting in the person’s best interests, an application to the Court of Protection will be necessary. This application will need to explain why it is within the best interests of the person to be vaccinated.

In conclusion

Both under-16s and adults without mental capacity can have parental figures consent to their Covid vaccine on their behalf – however, this is not by default and is by no means a pre-requisite to either group receiving the vaccine. In children under the age of 16, the decision will default to the parents or someone with parental responsibility only if the child is found not to be ‘Gillick competent’. With adults who do not have mental capacity to consent to their own medical treatment, it may be for the parents to provide consent for the person to have the Covid vaccine if they have been appointed as welfare deputy or have been given lasting power of attorney. If not, the relevant health and social care professionals and any family members or anyone with an interest in the person’s welfare, will work together to make a decision about whether a vaccine is within the person’s best interests. If this is unclear or if there is a dispute between any of the people involved in the decision making, an application should be made to the Court of Protection, and the Court will decide on behalf of the person whether it is in their best interests to be vaccinated. When it comes to vaccinating adults who do not have mental capacity, it is worth bearing in mind that there can be no blanket decision that vaccination would be in the best interests of a group of patients – the Mental Capacity Act 2005 requires that the best interests of each person must be determined individually, taking into account all relevant considerations.