Covid-19 Vaccine: Providing Consent and Vulnerable Persons

COVID-19 AND WARDS OF COURT

In this jurisdiction, the question of Wards of Court receiving a COVID-19 vaccine has been considered by both the President of the High Court and the Department of Health.

It was reported in December that the President of the High Court has voiced concerns that Wards would get the vaccine, on the direction of their clinicians, without undue delay.

There is a general presumption that individuals have capacity to consent to vaccination.  However, there may be times where individuals require additional supports to assist them in their decision-making.  A family member cannot consent or refuse consent to a vaccination on behalf of another person.

The HSE have prepared a useful guidance document here.

ENGLAND: RECENT COURT DECISION

The English Court of Protection last month ruled that it is in the best interest of an 80-year-old care home resident with dementia and schizophrenia to be vaccinated against COVID-19 despite her son’s objections.

The woman’s son was, the Judgment said, “deeply sceptical about the efficacy of the vaccine, the speed at which it was authorised, whether it had been adequately tested on the cohort to which his mother belongs, and, importantly whether his mother’s true wishes and feelings had been canvassed”.

Under English Law the Court was required to consider the woman’s son’s views, however ultimately the Court concluded that it was in her best interest to receive the vaccine.

The Judgment listed a number of factors which increased the woman’s vulnerability to becoming seriously ill or dying from COVID-19: namely-

• She is in her 80s.
• She is living in a care home.
• The care home in which she lives had confirmed recent positive cases of COVID-19.
• She had been diagnosed with type 2 diabetes.
• She lacked the capacity to understand the nature of transmission of COVID-19 and was “inevitably challenged”, as so many living with dementia in care homes are, by the rigours of compliance with social distancing restrictions.

The Judge concluded that “the vaccination reduces the risk dramatically and I have no hesitation in concluding that it is in her best interest to receive it”. Read the full judgment here.