BACKGROUND: A receptionist at a GP practice in England is phoning patients who have not had the first dose of the coronavirus vaccination. She speaks to an elderly patient, Mrs Z, who says she was wondering when the practice would get around to phoning in regard to her vaccination. An appointment is made for her to come in the next day.
An hour later the practice is phoned by Mr Z who demands to speak to a GP – Dr D. He states that practice records will show his wife was diagnosed with dementia six months ago and he has power of attorney (POA) for health and welfare. Both he and his wife have decided against being vaccinated as he has read on the internet of "unreported fatal side-effects” and that the government is suppressing the truth.
Dr D carefully explains the known risks but nothing will change Mr Z’s mind in the matter.
The practice consults MDDUS to ask whether it would be appropriate to contact Mr Z again and ask him to provide a copy of the POA. Should Mr Z be unable to supply the legal document would the practice then be able to contact Mrs Z again and offer the vaccination if judged to be in her best interest?
ANALYSIS/OUTCOME: An MDDUS medico-legal adviser responds to Dr D in writing. Several issues are relevant to the case.
First, Dr D is advised that it is a matter for him to decide whether the patient has capacity to consent or decline the vaccination. This would require an assessment of Mrs Z to determine whether she has sufficient capacity. If she does, then her consent or refusal should direct further action.
Should Dr D determine that Mrs Z lacks the mental capacity to make this choice, then it would be appropriate under the Mental Capacity Act 2005 to check whether there is any legal proxy who can consent to treatment on her behalf.
The adviser further states that it would be reasonable to request that Mr Z provides a copy of the document confirming he is the POA for health and welfare for his wife and this has been registered with the Office of the Public Guardian before considering next steps. Should he hold valid POA then he is entitled to withhold consent for vaccination on behalf of his wife, providing she has lost capacity and he is acting in her best interests. If he does not hold POA for health and welfare, then a decision should be made under the terms of the Mental Capacity Act, having considered the best interests of the patient. This should take account of any previously expressed wishes, any comments or views expressed by family members and other carers of the patient, and the least restrictive option.
Dr D is further advised to consult GMC guidance on Treatment and Care towards the end of life in regard to circumstances where there is disagreement with a family member over a decision in terms of the best interests of the patient.
You should aim to reach a consensus about what treatment and care would be of overall benefit to a patient who lacks capacity. Disagreements may arise between you and those close to the patient, or between you and members of the healthcare team, or between the healthcare team and those close to the patient. Depending on the seriousness of any disagreement, it is usually possible to resolve it; for example, by involving an independent advocate, seeking advice from a more experienced colleague, obtaining a second opinion, holding a case conference, or using local mediation services. In working towards a consensus, you should take into account the different decision making roles and authority of those you consult and a legal framework for resolving disagreements.
- Assess patient capacity in regard to specific healthcare decisions even in situations where a third party has a registered power of attorney for health and welfare.
- It is reasonable to request written confirmation of health and welfare POA for a patient deemed to have lost capacity.
- Best interests of the patient lacking capacity should take account of previously expressed wishes, the views of family members/ carers, and the least restrictive option.