Posted On / 27.05.2021

Covid vaccines - who gets to decide whether to vaccinate when the patient cannot?

According to mainstream medical opinion (though some people disagree), vaccines have been a miracle of the modern world.  They have allowed us largely to turn our back on polio, measles, mumps and more, plus of course enabling the eradication of smallpox from the planet.

We now look to vaccines to once again save the day in the current pandemic.

However, like all medical products, vaccines have side effects.  Some are minor, some are serious.  Some are rare, some are common.  Making a decision on taking the vaccine can be difficult.  We are told increasingly that the way to weigh this up is to look at the risk from not having it versus the risk from having it.

Most of us will make our own decision on whether we go ahead, using a combination of Government literature, what we see, hear and read in the media, medical advice from our doctor and our own thoughts, views and beliefs.

There are many in society, however, who will have the decision made for them, usually because they do not have the mental capacity to make that decision for themselves.

Leaving aside children, (who in general have yet to be scheduled for Covid vaccinations) this leaves those in society who are over 18 but do not have capacity to make such decisions.   In their case, relatives, carers, doctors and even the Court of Protection will make that decision, based on the same criteria that we ourselves will use for our own personal decision.

In such situations, the difficulty always comes when the parties who have the authority to decide disagree with each other.  For example, a caring relative may disagree with the clinician’s advice.  This was a situation seen in the recent Court case of ‘CR’.  CR at the time was a 31 year old man without the ability or capacity to make his own decision as to whether to receive a Covid vaccine.  He was clinically vulnerable and at increased risk, so the local Clinical Commissioning Group (CCG) wanted the vaccination to be given.  However, CR’s family objected.  The family’s concern was based on there being insufficient evidence on the consequences  (short term side effects and long-term impact) of receiving the new vaccine.   Conversely, the CCG were worried about the risk of him catching Covid.  The CCG applied to the Court of Protection for a decision. 

The Court decided that CR should be given the vaccine.  Although understanding the family’s concern regarding the availability of data, the Court decided that that concern in itself was not a sufficiently compelling reason to outweigh the benefits to a clinically vulnerable person of receiving the vaccine.  In other words, the risk from not having the vaccine was feared to be much worse for CR.

Covid has brought a world of change to us all.  Medical science is doing its best to keep up, and advice and guidance have been changing constantly.  The law too will need to keep up and to reflect the up to date medical advice and how one should form important decisions on vaccines, as well as decide what is appropriate treatment and what is an acceptable level of care.

Making appropriate decisions and receiving good quality healthcare are paramount and ultimately should see us through the pandemic.  In these difficult times, it can be challenging to access healthcare in the ways we previously all took for granted.   If you have concerns about the quality of care you or a loved one has received, contact us for advice and assistance.

For more information contact Victoria Knight on 01935 846131 or email victoria.knight@battens.co.uk

See our Clinical and Medical Negligence services here.