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).
Best interests
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.
In England and Wales, the Mental Capacity Act 2005, section 1(5) also places a duty on nurses and others to act in the best interests of those who lack capacity, but it does not provide a definition of best interests. Instead, section 4 of the 2005 Act sets out a process for determining best interests. It requires that when determining best interests, nurses consider:
- All the circumstances relevant to the case
- Whether it is likely that the person will regain capacity and if the decision can wait until capacity is restored
- So far as reasonably practicable, the steps needed to permit and encourage the person to participate as fully as possible in any act done for him and any decision affecting him
- So far as is reasonably ascertainable—
- the person's past and present wishes and feelings
- the beliefs and values that would be likely to influence his decision if he had capacity, and
- the other factors that he would be likely to consider if he were able to do so
- If it is practicable and appropriate to consult them, the views of—
- anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
- anyone engaged in caring for the person or interested in his welfare,
- any donee of a lasting power of attorney granted by the person, and
- any deputy appointed for the person by the court, as to what would be in the person's best interests.
The purpose of the best interests process is to consider the situation from the person's point of view so that a decision is made that is right for that person as an individual human being (PB v RB [2016]).
Adopting a balance sheet approach
The statutory best interests process requires nurses to consider a range of factors as part of their determination of the care and treatment needed by persons who lack capacity. The court recommends the adoption of a balance sheet approach where the benefits and disbenefits of proceeding with care and treatment are tabulated in relation to the requirements of section 4 of the Mental Capacity Act 2005 (W v M [2011]).
Adopting this approach allows nurses to set out their reasoning when making best interests determinations and demonstrates that the best interests process identified in section 4 of the Mental Capacity Act 2005 has been considered.
Consensus in best interest decision making
A nurse's duty to act in the best interests of a person who lacks capacity is open to challenge and objection from others, such as the person's family members, friends, attorney, and other professionals. Best interests determinations must, therefore, be based on consensus or be referred to the Court of Protection. Only a judge of the Court of Protection can make a definitive decision on a person's best interests (Re MN [2017]).
COVID-19 vaccine and best interests
A decision to vaccinate a person who lacks capacity to consent to immunisation against COVID-19 must follow the best interests process of the Mental Capacity Act 2005. Nurses must come to a consensus with other professionals involved in the case and family that it is in the person's best interests to proceed with vaccination. If objection cannot be resolved, then the Court of Protection must be asked to make a definitive decision as to the person's best interests.
Two such cases have been considered by the Court of Protection with the vice president of the Court hearing the cases and providing guidance for nurses on how to apply the best interests process to COVID-19 immunisations. In E v London Borough of Hammersmith and Fulham [2021] and SD v Royal Borough of Kensington and Chelsea [2021] the person in each case lacked capacity to decide on immunisation, was resident in a care home, and had a relative who argued that it would not be in their best interests to have the COVID-19 vaccine.
The Court of Protection held in each case that despite the current public health crisis nurses must guard against being drawn towards an outcome that protects the vulnerable person at the expense of their wishes and beliefs. There could not be a presumption that it would always be in a person's best interests to be immunised against COVID-19. Instead, each case had to be considered on its circumstances in line with the requirements of section 4 of the Mental Capacity Act 2005.
In developing the balance sheet for the Re E [2021] case, Justice Hayden pointed to the high death rates due to COVID-19 in the UK and noted that E's vulnerability was compounded by:
- Being in her eighties
- Living in a care home
- The care home having confirmed recent positive cases of Covid-19
- Lacking the capacity to understand the nature or transmission of Covid-19 and challenged by the rigours of compliance with social distancing restrictions.
On her wishes and feelings, although her son argued that she would not want the vaccine, Justice Hayden considered it significant that prior to being diagnosed with dementia, E had willingly accepted the annual flu vaccine and was immunised against swine flu in 2009 in line with public health advice.
Justice Hayden concluded that it would be in E's best interests to have the COVID-19 vaccine.
In Re SD [2021] Justice Hayden again highlighted the willingness to comply with public health advice before the diagnosis of Korsakoff syndrome (a non-progressive form of dementia) as an indication of her wishes and beliefs. SD faced specific risks because of her age, weight, mental disorders and the fact that she lived in a care home. Her short-term memory problems made it a real challenge for her to comply with the principles of social distancing and preventive hygiene.
Justice Hayden acknowledged that every member of staff and every other resident in the care home had been immunised but held that because no vaccine is 100% effective, she remained at risk of contracting the virus. Justice Hayden again concluded that it would be in the person's best interests to be vaccinated.
Conclusion
The cases illustrate the need to consider best interests determinations from the person's point of view. Justice Hayden's approach in identifying the risks, wishes and beliefs of the person in each of these cases will assist and inform the best interests process that nurses undertake before determining that the COVID-19 vaccine is in the best interests of a person who lacks capacity to make the decision themselves.
KEY POINTS
- There is a duty on nurses and others to act in the best interests of those who lack capacity.
- To lawfully administer the vaccine to a person who lacks capacity, nurses must show that it is in the person's best interests to proceed.
- Nurses' best interests determinations must comply with section 4 of the Mental Capacity Act 2005.
- Nurses must come to a consensus with family and others about a person's best interests or the matter must be referred to the Court of Protection.
- The Court of Protection's approach in identifying the risks, wishes and beliefs of the person in COVID-19 vaccine cases will assist and inform the best interests process that nurses undertake when considering administering the vaccine to a person who lacks capacity.