Guidance

Guidance on vaccinations for attorneys and deputies

Updated 28 June 2023

Applies to England and Wales

1. Seeking consent for the vaccine

The person receiving a vaccine must agree to have it before they are given the vaccine. This is based on both the current legal position and the standards expected of healthcare professionals.

It’s important to assume a person has the ability to make their own decision unless proven otherwise. However, a lack of mental capacity to consent should not stop a vaccine being offered. There are additional steps that the vaccinator will need to take if the person lacks capacity to consent to the vaccine.

2. Understanding that not everyone is able to give consent

When a person doesn’t have the mental capacity to consent to receiving a vaccine, a best interests decision should be made for them. The decision can only be made by an attorney or deputy appointed to make health and welfare decisions. Attorneys and deputies who are appointed only to make decisions on property and financial affairs cannot make decisions on vaccinations.

Before agreeing to administer the vaccine to someone who lacks capacity, it is the responsibility of the healthcare professional, allied health professional or volunteer offering the vaccines to make sure one of the below is in place:

• a lasting power of attorney (LPA) for health and welfare
• a relevant Court of Protection Order (generally this is a deputyship order, but it might be an order of the court about this specific issue)

The healthcare professional or individual who would administer the vaccine should then consult with the attorneys or deputies to gain their consent.

If the attorneys or deputies do not consent to the vaccine being administered, the healthcare professional may consider that decision isn’t in the best interest of the individual. If so, the healthcare professional will then seek legal advice from the relevant local authority or NHS body. An application may be made to the Court of Protection for them to make the final decision on whether to administer the vaccine or not.

3. Making decisions

Throughout the rest of this guidance ‘you’ means either the attorney or the deputy.

Part of your role is to make sure you’re acting in the best interests of the person who appointed you to act on their behalf when they’ve lost mental capacity.

You should think about what their wishes would be if they were able to make decisions for themselves.

You need to consider:

• their past and present values, including moral, political, and religious views
• any other factors they would usually consider if they were able to do so
• any preferences on their health and welfare LPA (if they have instructions, these are enforceable and must be followed)

You should not make a decision just because of their age or appearance. You should not make assumptions based on a condition they may have or because of an aspect of their behaviour.

• you should also consider if it’s likely they will regain their mental capacity- if so, when is that likely to be. If the decision can wait for them to make it themselves, or be involved in the decision making, then you should wait

Here are a few things you can do to make sure you are contacted for your decision:

• if the person lives in a care facility, tell the facility they must contact you for a decision
• if the person lives alone, contact the local vaccination team to ensure you are contacted for a decision before the vaccine is given

The healthcare professional will want to understand how you have made the best interests decision, particularly if it is contrary to their professional opinion, and you are not giving your consent. If an agreement between you and the healthcare professional cannot be reached, those responsible for vaccinating will need to make an application to the Court of Protection to make the decision.

As with all healthcare decisions, it is important that you engage with the healthcare provider or professional before you make a best interests decision.

If you decide to consent to the vaccine on behalf of the person, you do not need to attend the vaccine appointment. As long as you have given your consent, someone else can take them to the vaccine appointment with your permission.

4. Need more information or do you have any questions?

Please refer to chapters 4 and 5 of the Mental Capacity Act Code of Practice for more information and guidance about how the MCA works in practice.

Or call our contact centre on 0300 456 0300.