Incapacity and consent to COVID-19 vaccination

There have been a number of cases dealt with by the Court of Protection (COP) in the United Kingdom concerning the issue of consent to COVID-19 vaccinations including the following cases:-

Re E [2021] EWCOP 7SD v RBKC [2021] EWCOP 14; and Re CR [2021] EWCOP 19.

In the above cases, each of the home care residents lacked mental capacity to provide consent and relatives objected to them receiving COVID-19 vaccinations. The Court of Protection applied the requirements of the Mental Capacity Act 2005 (UK) and ruled in each case that the interests of each home care resident favoured vaccination. The Court took into account the views of parties interested in each patient’s welfare and heard evidence from relatives. In each case, the Court found that there was overwhelming objective evidence supporting vaccination and utilising available steps to prolong life.

Suspension of doctor related to COVID-19 advice

In the Irish case of Medical Council v Dr Gerard Waters [2021] IEHC 252, the Medical Council sought interim suspension of a general practitioner following a complaint by a patient that the doctor’s surgery contained pamphlets titled ‘No Pandemic Killing Us’. The patient also complained that during a consultation with the general practitioner, the doctor advised the patient that COVID-19 was a hoax and that the wearing of masks was contra-indicated and causing illness. In response to the complaint, the doctor confirmed his view that measures taken by the government had resulted in more harm than good and that the official COVID-19 death toll was inflated. The doctor also confirmed that he would not administer COVID-19 vaccinations as he was ‘a conscientious objector’ and that he had not referred any of his patients for COVID-19 testing. Despite the fact that undertakings were offered by the general practitioner, the Court was not satisfied that they safely allowed a less restrictive sanction than suspension from practice.

COVID-19 vaccine indemnity scheme in Australia

Prime Minister Scott Morrison recently announced a vaccination indemnity scheme to cover health practitioners in Australia who are found liable to pay compensation following serious adverse events suffered due to patients receiving COVID-19 vaccines. At the present time there is a lot of confusion as to how the COVID-19 indemnity scheme will operate.

The Pfizer COVID-19 vaccination is now the recommended vaccination for people under 60 years of age in Australia. However, general practitioners can continue to administer the Astra-Zeneca vaccination to patients under 60 years of age with informed consent. The Prime Minister announced that the COVID-19 vaccine indemnity scheme ‘will provide confidence to medical practitioners to administer both Astra-Zeneca and Pfizer vaccines to Australians’. The proposed indemnity scheme appears to have been announced primarily to alleviate the concerns of health practitioners related to administration of the Astra-Zeneca vaccination to patients under 60 years of age.

In Australia, all health practitioners are required by law to have professional indemnity insurance in order to practice. The proposed vaccine indemnity scheme appears to shift exposure arising from adverse vaccination events from existing private indemnity insurers to the Commonwealth of Australia. However, it is unlikely to prevent private health practitioners being sued for negligent advice in relation to the risks and benefits of a particular vaccine to individual patients. The proposed vaccine indemnity scheme applies to all health practitioners including doctors and nurses.

Australia does not have a “no-fault” vaccination injury compensation scheme however countries such as the United States of America and the United Kingdom have these schemes. In these countries and some others, in the event of an adverse reaction to a COVID-19 vaccination, compensation is available automatically pursuant to the relevant scheme. Some media reports interpreted the proposed indemnity scheme in Australia as including “no fault” coverage to compensate Australian patients who suffer adverse reactions to COVID-19 vaccines, however this remains uncertain at present. Full details of the proposed indemnity scheme are yet to be released however the Prime Minister’s announcement did not make any specific reference to “no fault” compensation provisions being included. Without a special “no fault” vaccine compensation scheme in place, patients in Australia will only be eligible to claim compensation if their treating health practitioner fails to exercise reasonable care or acts in contravention of Australian Consumer Law. Potential actions may also be available against vaccine manufacturers. At present, access to compensation requires fault on behalf of the health practitioner or vaccine manufacturer until such time as any “no fault” scheme is introduced.

Petitions against COVID-19 vaccination programs

Petition EN2753 was recently submitted to the Parliament of Australia. The petition refers to ‘experimental vaccines’ for COVID-19 being administered in contravention of the Nuremburg Code if made mandatory. The petition requests the House to uphold the Nuremburg Code and not make COVID-19 vaccinations mandatory in Australia. The petition closed for signatures on 14 July 2021 with a signature count in excess of 300,000.

A similar petition was rejected by the UK Government and Parliament. The UK petition was rejected on the basis that petitions need to call on the government or parliament to take a specific action however it was unclear exactly what the petition was asking the UK government or parliament to do. Concerns were acknowledged about the COVID-19 vaccine program however it is not mandatory for UK residents. Another petition has now been lodged in the UK specifically related to mandatory vaccination of health and social care workers.

It appears that the Nuremburg Code has been incorrectly cited to oppose COVID-19 vaccinations in these international petitions. An increasing number of social media users are expressing their opposition on the basis that COVID-19 vaccination is an infringement of their rights under the Nuremburg Code. The Nuremburg Code is a set of ethical research principles developed in response to the Holocaust and Nazi atrocities during World War II particularly in relation to inhumane experimentation on humans without consent. The aim of the Nuremburg Code is to protect human rights, to uphold medical ethics and informed consent. The purported link to the current pandemic and vaccination programs appears inaccurate as it is unlikely that COVID-19 vaccines would be defined as ‘experimental’. All COVID-19 vaccinations have been trialled and authorised for medical use after being deemed safe and effective in large scale clinical trials. Further, informed consent is still required on behalf of patients receiving COVID-19 vaccinations.

 

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