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The COVID-19 vaccine and the best interests of a person who lacks capacity

11 March 2021
Volume 30 · Issue 5


Richard Griffith, Senior Lecturer in Health Law at Swansea University, considers two recent cases in the Court of Protection that determined if the COVID-19 vaccine was in the best interests of a person who lacked the mental capacity to decide on immunisation after relatives objected its administration

COVID-19 related deaths in care homes increased by 46% during the third wave with some 25 000 deaths in England alone at the end of January 2021 (Booth and McIntyre, 2021). The higher risk of death from COVID-19 for older people living in care homes has made them a priority group for immunisation now that vaccines against the virus have been approved. This priority group includes vulnerable older people who are unable to consent to the vaccine because they lack the mental capacity to do so. To lawfully administer the vaccine in such cases, nurses must show that it is in the person's best interests to proceed (Mental Capacity Act 2005, section 5).

The Nursing and Midwifery Council Code (2018), standard 4, requires nurses to act in the best interests of people at all times. This includes balancing the need to act in the best interests with the requirement to respect a person's right to accept or refuse treatment and keeping to laws about mental capacity by making make sure that the rights of those who lack capacity are still at the centre of the decision-making process.

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