Incapacity and COVID-19 Vaccination
The law on consent to treatment in Ireland is set out under the following legislation:
- The Health Act 1953, which at section 4 (1) provides: “Nothing in this Act or any instrument thereunder shall be construed as imposing an obligation on any person to avail himself of any service provided under this Act or to submit himself or any person for whom he is responsible to health examination or treatment.” and
- The Non-fatal Offences against the Person Act, which at section 23 (1) provides: “The consent of a minor who has attained the age of 16 years to any surgical, medical or dental treatment which, in the absence of consent, would constitute a trespass to his or her person, shall be as effective as it would be if he or she were of full age; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his or her parent or guardian.”
The position therefore is:
(a) treatment without consent constitutes a trespass to the person;
(b) ordinarily, a person must be of full age (so over the age of 16 years) to give effective consent;
(c) in the case of minors (so people under the age of 16 years), parents and guardians are lawful proxy consent-givers; and
(d) capacity to give consent is presumed, subject to the person having attained the age of 16 years.
Therefore, if medical treatment is given without consent, it may be trespass against the person in civil law, a battery in criminal law, and a breach of the individual’s constitutional rights.
To break it down further:
- Consent given by a person over the age of 16 years and who has capacity is a matter of choice;
- Consent may be given for minors by their parents or guardians;
- Where the person is over the age of 16 years but is incapacitated, then the issue of consent arises.
What is a Ward of Court
A Ward of Court is the term used for a person who is deemed by the courts unable to look after their own affairs and who has someone appointed to do so on their behalf. A person can be made a Ward of Court due to mental incapacity or age.
Enduring Power of Attorney and Advanced Healthcare Directive
If you think there may come a time in your life where mental incapacity will become an issue, you should contact your solicitor as soon as possible to make an Enduring Power of Attorney and an Advanced Healthcare Directive. This will allow you the right, while you have capacity, to authorise a specific person or persons to make decisions (regarding your health and other matters) if or when you become incapacitated.
If you do not have an Enduring Power of Attorney and Advanced Healthcare Directive completed while you have capacity, and you become incapacitated, then it is likely that a relative or spouse will apply to the court at some point to have you made a Ward of Court. Where the Court determines that you should be made a Ward of Court, the High Court will appoint a person or persons, known as the Committee – noting that the Committee can only do what the court authorises. It should be noted that the court does not have to appoint the person who petitioned the court to be made your committee.
Pre-Covid, for a Ward, it was necessary in many cases for the residential facility to make a court application to carry out a vaccination, unless the Ward was consenting to the vaccination and was shown to have capacity to do so. However, post COVID-19, new guidance has issued from the High Court such that consent to the COVID-19 vaccination for a Ward may be decided by the residential staff or doctors, with the consent of the patient. Noting again that the vast majority of wardship applications concern mental incapacity.
If the person does not consent to the vaccination, an application must be made to the Court by the residential centre. If the Committee does not consent on the basis that the incapacitated person, stated to have consented, does not have the capacity to give informed consent, then the Committee may bring its own application to the court for the decision to be made by the court.
What happens when a person is neither a minor, neither has capacity and is neither a Ward of Court?
We have become aware that in such cases, nursing homes and residential facilities are (in some cases) making the decision for themselves to vaccinate such persons without permission from the persons next of kin and without consulting with the courts, and in situations where the resident is stated to have given consent to staff at the centre – but this is regardless of the fact that that person does not have capacity to give informed consent.
We consider this to be a very serious matter as the loss by an individual of his or her mental capacity does not result in any diminution of his or her personal rights recognised by the Constitution, including the right to life, the right to bodily integrity, the right to privacy, including self-determination, and the right to refuse medical care or treatment.
In cases where a person is not a Ward of Court and cannot give informed consent due to lack of capacity, it is our view that an application must be made to the Court by the nursing home or residential facility seeking permission to vaccinate the incapacitated person. It is our understanding, however, that this is not taking place.
In light of same and in order to safeguard the constitutional rights of incapacitated persons, please find below draft letter that may be tailored and issued by the next of kin of any such person. This letter confirms that neither you nor the facility where any such person is resident, has the lawful authority to consent or refuse to consent to medical treatment on behalf of any such person and as such an appropriate lawful consent-giver should be appointed before any vaccination takes place.
You may issue this letter yourself, however, such a letter is likely to hold more weight if it is issued by a solicitor on your behalf, therefore one of the solicitors that I have been collaborating with for some time is prepared to issue this letter on behalf of anyone who wishes, for a small fee. If you wish to avail of this offer, please email [email protected] and I will forward your communication to the solicitor concerned.
Please note that this letter can be issued even if the incapacitated person has already received the COVID-19 vaccination as the issue of consent will continue to arise given that more than one dose of the vaccine or booster shots may be required, therefore, this letter can and should be sent in all cases where capacity is an issue and where the incapacitated person is not a ward of court.
Link to letter here: Inoculation of Vulnerable People