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covid vaccination | Nursing Home Information

Is an LPA a reason to refuse the COVID-19 vaccine?

By Chris Partington, partner and head of private client at Slater Heelis

Some elderly and vulnerable people’s health and welfare requirements are decided by a lasting power of attorney (LPA).

Therefore, someone who holds LPA for a relative could decide to reject the vaccine on moral grounds and the wishes of their loved one, or accept it in their best interests.

Partington said: “For anyone to make formal decisions about another adult’s health, they should have a Health and Welfare LPA. It is widely believed that a person’s next of kin can make healthcare decisions on their behalf should they become unable to make their own, but that is unfortunately not always the case.

“As the vaccine gets rolled out, Health and Welfare LPA holders will have to choose whether incapacitated relatives have a vaccination, which may be a particularly hard decision for attorneys of anti-vax believers.”

What constitutes mental incapacity?

The Mental Capacity Act (MCA) applies to people aged 16 and over, and aims to protect and empower people who lack the capacity to make their own decisions. Classic examples of persons who may lack capacity are those with dementia, severe learning disabilities, brain injuries, mental health illnesses or someone who is unconscious, but people are not considered incapacitated just because they suffer from one of these conditions.

The act states that people cannot be treated as incapacitated just because they are making an unwise decision and are only regarded as unable to make decisions if they can’t understand, retain and weigh up information as part of the decision-making process.

Unless the attorney, and health professionals, genuinely believe that a person cannot make such a decision, you should not use LPA to override their decision to reject the vaccine.

The only time where this may not be the case is when someone has drawn up an advance decision to refuse treatment (ADRT), or living will, before incapacitation. However, the wording of the ADRT needs to be specific and should refer to medication or vaccinations. An ADRT lets carers, family and health professionals know about an individual’s wishes in the treatment they receive. If someone’s ADRT specifically says that they do not want to receive immunisations, then attorneys should abide by their decision.

No LPA in place

If there is no health and welfare LPA, all decisions about the health and social care of someone who lacks sufficient mental capacity will be made by healthcare professionals. Such choices made on behalf of someone who cannot give consent will be carefully considered to determine what steps are in their best interests.

“In the context of the COVID vaccine, it is likely that getting the immunisation will be considered in a person’s best interest to protect them from the virus, particularly if they are elderly, have underlying health conditions or live in a care home.

To determine best interests include considering whether it’s safe to wait to see if they gain capacity, involving the person as much as possible in the decision, and consulting friends, family or an independent mental capacity advocate to determine what the person would have wanted.


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