COVID-19 testing and vaccines
Advocacy Provision in respect to coronavirus swab testing and vaccination
It is Dudley Advocacy’s understanding that despite the Mental Capacity Act 2005 and the Coronavirus Act 2020 being in place, there are still gaps within these legislative frameworks which could lead to confusion in how to undertake testing and vaccinations.
In respect to swab testing and vaccinations for coronavirus it is vital that people have access to them and that decisions about administering them are taken lawfully.
Advocacy may be offered to support people to get information about swab testing and coronavirus vaccinations, assisting people to access them, and supporting people who find decisions about having a swab test and vaccination difficult. By gathering this information, Dudley Advocacy can then support a person in relation to the decision about having a swab test and/or having the coronavirus vaccination.
In the absence of definitive guidance there is a lack of clarity as to if in some circumstances these forms of treatments constitute serious medical treatment, if and when it is appropriate to consult an IMCA or other advocate, if any treatments/interventions prove distressing and/or involves an element of restraint whether an application should be made to the Court of Protection, and whether in some circumstances treatment/intervention amounts to a deprivation of liberty. (There are links provided at the end of this document in relation to providing further information in relation to this)
Please find below information detailing the approach that Dudley Advocacy has decided to take along with the type of support Dudley Advocacy can offer:
For people who have mental capacity
Dudley Advocacy is able to provide support via our Complex Advocacy service for adults living in Dudley with a learning disability and complex needs and via our Advocacy at Home project for people living in a care home aged 65 and over. Please view our website for more details and to make a referral.
The government has been clear that it has no intention of making swab testing and vaccination mandatory. The Mental Capacity Act and associated guidance makes clear that people have the right to make unwise decisions and that an unwise decision does not of itself mean that the person making it lacks mental capacity.
For people that lack mental capacity
ANY decision made on behalf of a person who lacks capacity has to be made in their best interests and adhere to the principles and guidelines of the MCA in demonstrating how and why a decision has been made and reached; along with being the least restrictive option wherever possible.
Therefore, a client could be assessed as lacking capacity in relation to swab testing and/or vaccination (and although this may not constitute SMT in itself) the best interest principles outlined in chapter 5 of Mental Capacity Act (2005) should still be followed. In addition, under section 4(7), the decision-maker has a duty to take into account the views of the following people, where it is practical and appropriate to do so:
• anyone the person has previously named as someone they want to be consulted
• anyone involved in caring for the person
• anyone interested in their welfare (for example, family carers, other close relatives, or an advocate already working with the person)
• an attorney appointed by the person under a Lasting Power of Attorney, and
• a deputy appointed for that person by the Court of Protection.
5.50 If there is no-one to speak to about the person’s best interests, in some circumstances the person may qualify for an Independent Mental Capacity Advocate (IMCA).
Best interests are interpreted in a broad sense, not narrowly in terms of what is medically most beneficial. This means that it would be appropriate to consider the impact on the person of any restriction which may be imposed if the person is not vaccinated, or any loss of trust, if the vaccination is given against their will.
There is no definitive list of what constitutes serious medical treatment under the Mental Capacity Act (2005). However, section 10.44 outlines ‘Serious consequences’ are those which could have a serious impact on the patient, either from the effects of the treatment itself or its wider implications. This may include treatments which:
• cause serious and prolonged pain, distress or side effects
• have potentially major consequences for the patient or
• have a serious impact on the patient’s future life choices
Therefore, in the absence of family members/ friends, Court appointed deputy or attorney; it would be appropriate to instruct an IMCA (MCA 5.50) Please view our website for more information and to make a referral.
Please consult the following links for further guidance:
Coronavirus (COVID-19): looking after people who lack mental capacity - https://www.gov.uk/government/publications/coronavirus-covid-19-looking-after-people-who-lack-mental-capacity
Mental Capacity Act Code of Practice - https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
Coronavirus Act 2020 - http://www.legislation.gov.uk/ukpga/2020/7/pdfs/ukpga_20200007_en.pdf
Essex Chambers – Rapid response guidance note: testing for covid-19 and mental capacity
Essex Chambers - Rapid response guidance note: vaccination and mental capacity (first update)
The information within this document may be reviewed as circumstances change, this document is not intended to provide a statement of the law and no liability is accepted for any consequences of relying upon it.
Reviewed: January 2021