We all want to protect our loved ones from illnesses like Covid-19 and the flu NHS Scotland are currently rolling out their winter vaccine scheme. Vaccination is an important tool, but what if your loved one is unable to give consent due to mental illness, learning disabilities, dementia, or other health conditions? This blog will help you understand the process of decision-making and consent when it comes to getting vaccinated.
Capacity to Consent
In most cases, adults over the age of 16 are presumed to have the capacity to make their own medical decisions, including vaccinations. However, some individuals may lack the capacity to make such decisions due to mental disorders.
The Adults with Incapacity (Scotland) Act 2000 defines the lack of capacity as the inability to make, understand, remember, communicate, or act on a decision due to mental disorder. Fortunately, many people with mental illnesses, learning disabilities, and related conditions can still provide consent for vaccination. With proper support and communication methods, they can make informed decisions about their health.
Support for Decision-Making
For those with impaired capacity, it's essential to provide appropriate support to help them reach a decision and give their consent for vaccination. This support may involve using different communication methods, providing information in accessible formats, and allowing time and space for decision-making.
However, there will be cases where individuals truly lack the capacity to consent to vaccination. In such situations, healthcare practitioners must follow specific principles outlined in the Adults with Incapacity Act. The vaccination must benefit the individual receiving it - not that the vaccine may benefit wider society. The vaccination schedule and the role of boosters should be considered to determine if this is the minimum necessary intervention. As vaccination typically involves intramuscular injection, and there's currently no oral alternative, this is likely to be the case. Healthcare providers should take into account the individual's past views on vaccinations and any advance decisions regarding vaccinations. Consultation with relevant individuals, including family members, can help determine the person's views and past wishes. Those who have been granted Power of Attorney or a Guardianship Order with relevant powers should also be consulted and can provide consent. Whenever possible and practical, support should be provided to help the person make a decision.
Obtaining Authority for Vaccination
If a person lacks capacity to consent, a certificate granted by a medical professional can provide the necessary authority for Covid-19 vaccination. In some cases, individuals may physically resist vaccination. Whether it is justified to administer the vaccine against their resistance must be carefully considered on an individual basis, taking into account the necessity and proportionality of the force used.
Welfare Guardians and Powers of Attorney
If you are a welfare guardian or have been granted a welfare power of attorney, your consent is generally required for treatment where a certificate is granted by a medical professional, except in cases where obtaining your consent is unreasonable or impractical. In situations where force may be necessary, you can apply for an intervention order or welfare guardianship order to authorise the vaccination.
Ensuring the well-being of our loved ones, especially those who may lack capacity, is a complex but vital responsibility. If you have concerns or questions about your loved one receiving a Covid-19 vaccine, whether or not you currently hold legal powers of decision-making by way of Power of Attorney or Welfare Guardianship, we would be happy to discuss your circumstances.
Guidance on Guardianship Orders and Powers of Attorney
Power of Attorney
A Power of Attorney is prepared by you and allows you to plan how you would like another person to act on your behalf in the future, should you become incapable of making your own decisions. You can nominate a person as your Attorney to allow them to deal with money and property, to make decisions regarding your health or personal welfare matters or both. We can provide advice and guidance on what should be included in your Power of Attorney and thereafter prepare the written documentation. We also arrange for the Power of Attorney to be registered with the Office of Public Guardian in Scotland.
Legal Aid is often available for preparation of a Power of Attorney. We are happy to provide a no obligation service to assess your eligibility for free legal assistance. We also offer a fixed private fee for occasions when Legal Aid is not available.
Guardianship Orders
A guardianship order is granted by the court and provides authority to a person to make decisions on behalf of another where they are considered to be an ‘adult with incapacity’. An adult with incapacity is a person over the age of 16 who is not able to look after their own affairs due to mental disorder or inability to communicate because of physical disability. The law states that an adult will be deemed incapable to manage their affairs if they are incapable of acting on or making decisions, communicating decisions, understanding decisions or retaining memory of decisions.
There are three types of guardianship order:-
Legal aid is often available in respect of an application for guardianship. Eligibility for legal aid is based on the adult's income and assets and not the prospective guardian's. Civil Legal Aid is available where welfare powers are sought without the need for any financial assessment.
A guardianship order must have some benefit to the adult and be the least restrictive option available. For example, there are alternative methods available to manage an incapable adults finances including DWP Appointeeship and Access to Funds. Details of these can be found on the website of the Office of the Public Guardian Scotland (see link on our website).
We are happy to offer informal advice as to whether a guardianship order will help the adult in question and that it is appropriate for their circumstances. We can also carry out a no obligation assessment on eligibility for legal aid.
Intervention order
An intervention order is granted by the court and gives authority to a person to perform a one-off action on behalf of an adult with incapacity. This could include signing legal documents, including tenancy agreements, or selling the adults house. An intervention order lasts until the action is complete. If powers are required on an ongoing basis then a guardianship order may be more appropriate.
Legal aid is often available to apply for an intervention order.
Guidance on Mental Health Law
Legal powers can be used where someone is receiving treatment for a mental illness or disorder but do not agree with that treatment. Decisions can be made on their behalf as to when and how treatment is delivered, Aand when they can be kept in hospital against their will. There are a number of safeguards in place to ensure that where legal powers are used, an individual’s rights are protected.
Emergency Detention
Where a doctor recommends that someone’s condition should be assessed they can be held in hospital for up to 72 hours (3 days). During this time, they should not be given any treatment unless they agree with it, unless the treatment is considered to be required urgently. There is no right to appeal against emergency detention.
Short Term Detention
When further time is required for assessing and treating a suspected mental illness or disorder, a person can be detained in hospital for up to 28 days (4 weeks). A legal order known as a Short Term Detention Certificate (STDC) is issued if a Psychiatrist and a Mental Health Officer both agree that a patient meets certain legal criteria.
A STDC can be challenged by a patient or their Named Person or next of kin in certain circumstances. This is done by way of an appeal to the Mental Health Tribunal for Scotland. An independent Tribunal will be convened and panel of three members, consisting of a legal member (lawyer), medical member (psychiatrist) and general member, will hear evidence and decide whether the detention should continue. Legal aid is available to the patient and their Named Person irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.
Compulsory Treatment Order
Compulsory Treatment Orders impose measures to either detain a patient in hospital for the purpose of receiving treatment or to compel treatment to be received in the community.
An application for a Compulsory Treatment Order is made by a Mental Health Officer at the request of a treating psychiatrist. The Mental Health Officer will prepare a report and obtain two medical reports. A Mental Health Tribunal will be convened to hear the application. Legal aid is available to the patient and their Named Person irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.
Compulsory Treatment Orders can last up to six months and must be revoked when a psychiatrist comes to a view that the individual no longer meets certain legal criteria. If the Order is still in place after three months a patient or their Named Person can appeal to the Mental Health Tribunal and request that the Order be reviewed.
Court Imposed Orders
Compulsion Orders are imposed by a Sheriff at Court following a criminal case. These are initially made for a period of six months and a Tribunal will be fixed thereafter to review it. A Patient or their Named Person can oppose the extension of the Order and is entitled to legal representation.
Compulsion Order and Restriction Orders are granted by the court for an indefinite period of time. These will be reviewed annually by a patient’s psychiatrist and the Scottish Government. A Patient and their Named Person can also appeal against the orders.
Legal aid is available irrespective of finances for any Tribunal proceedings and it may be possible to arrange for an independent psychiatric assessment.
Links to other relevant sites
Office of the Public Guardian Scotland - https://www.publicguardian-scotland.gov.uk/
Self Directed Support Scotland - https://www.sdsscotland.org.uk/
Mental Welfare Commission for Scotland - https://www.mwcscot.org.uk/
Mental Health Tribunal for Scotland – https://www.mhtscotland.gov.uk/mhts/Home/Welcome_to_the_Mental_Health_Tribunal
Where we Operate
Our main areas of operation are Glasgow City, Glasgow Southside, North Glasgow, Paisley, Hamilton, East Kilbride, Coatbridge, Uddingston, Motherwell, Wishaw, Cumbernauld, Dumbarton, Stirling and Falkirk. If you are outwith any of these areas please do not hesitate to contact us to check our availability to travel to you.