Vaccinations and medications administered to patients with limited capacity (FOI)

Request

A

Please provide me with the current policy / procedure (or a policy statement) on vaccinating individuals deemed to lack capacity under the Capacity and Self Determination (Jersey) Law.

B

The same question for signing-off and agreeing general medications or treatment including those with sedative effect.

This request particularly in the instance of any adult deemed not to have capacity to make Health and Welfare decisions for non-emergency treatments such as vaccination.

For guidance; I expect the policy to cover each living situation under the Law such as those with no Court-appointed health and welfare delegate or independent capacity advocate, not residing in an Approved Establishment (as defined under the Mental Health (Jersey) Law).

C

Does the Minister refer the decision to the Royal Court?

D

To what extent can family members object to what is proposed before it is administered?

E

What preparations are made such as topical pain relief and whether or not any individuals have or may be physically restrained if any vaccine is administered and whether or not a test for the presence of antibodies is conducted in advance.

The answers to be divided before and after the timestamp of this email such that a sudden change of policy will be apparent. Kind regards

Response

The Covid-19 pandemic is a public health crisis and the Government of Jersey has embarked on an ambitious plan to offer vaccinations to the citizens of Jersey. At present, this is triaged by vulnerability and necessity.

A

Vaccination is a treatment under the Capacity and Self-Determination (Jersey) Law 2016 [‘the CSDL’]. As such, the procedure for carrying out acts of care or treatment for individuals assessed as lacking capacity to make the decision follow this process:

i. Establish whether there is an ‘advance decision to refuse treatment’ in relation to the proposed treatment; if not

ii. Establish whether there is a health and welfare attorney or delegate who is legally authorised to make the decision;

iii. If not (In most cases) the person carrying out the act of care and treatment satisfies themselves regarding lack of capacity to make the decision about vaccination and undertakes a best interest determination which is set out under Article 6 of the CSDL

Although there is no specific policy, information is available regarding the practice of vaccination in residential and care home settings. The approach taken was to gather information and consult in advance of the decision to vaccinate. This approach allowed the residents to be grouped into categories that assisted with the process for the mobile vaccination teams. Where an individual lacked capacity to consent to vaccination, a best interest determination was always made as to whether vaccination should or should not take place, as required by the law.

B

General medications and treatments, including those with a sedative effect, follow the same process as detailed in A above. Once a lack of capacity to consent to the treatment is established, there is a best interest determination regarding treatment(s) is made by the doctor assessing the patient.

C

The Minister does not ordinarily refer care and treatment decisions to the Royal Court. There are many care and treatment decisions taken on an ongoing basis and the best interest process is the means to make these decisions under the law.

D

Under best interests, family members are ordinarily consulted, if practicable and appropriate, as detailed in the law. However, their views are only part of the overall decision. Best interest is a holistic determination about what is right for the person and this may conflict with other’s views. Best interest decisions are also unique and tailored to each individual and their circumstances. The decision must be made for the person and the decision-maker and those involved should not base decisions on what they would choose for themselves, or their values or beliefs. The decision must focus on, and be determined by, the relevant circumstances for the person.

In terms of objections, the CSDL Code of Practice highlights dispute resolution at Chapter 3.44:

If significant others involved in a best interest decision wish to challenge a decision-maker’s conclusions, they must be able to demonstrate that the decision-maker has not followed the best interest process or has not known about pertinent information. Decision-makers are able to use and weigh information as they understand P and their best interests. There are several options to review decisions:

• informal feedback to the individual about the decision

• hold a formal ‘best interests’ case conference

• hold a review of the process eg by a Capacity and Liberty Assessor

• pursue a complaint through the organisation’s formal procedures.

If these steps are exhausted and fail to resolve the dispute, the Court might need to decide what is in the person’s best interests.

Dispute resolution is intended for use where there is a mistake, missed information or a material change in circumstances, rather than differences of opinion. The above options to review decisions do not need to be followed in a linear manner and the dispute resolution may only be a selection of some of these elements.

E

The preparations made for vaccination would be specific for each individual and be considered in the best interest determination, utilising the information gathered in advance. This would include whether topical pain relief was required and consider other factors such as needle phobia, which would influence the decision of whether to vaccinate or not.

There is no information available regarding the use of restraint. Under the law, any use of restraint must be necessary to prevent harm and a proportionate response to the likelihood and seriousness of that harm to the individual. As such, restraint would generally not be used in vaccination. However, it is important to note that holding someone’s hand gently to keep an arm in an appropriate position is considered restraint, albeit proportionate.

Currently, there is no antibody test in advance. The instrument required to pierce the skin for an antibody test is much thicker and, for many, more painful than the vaccination itself. It also requires an individual to participate in being settled whilst blood is squeezed from the pierced area. As such, this would add more distress for an individual who lacks capacity to consent and does not add value to the vaccination process.