Flu vaccinations - assessing capacity to consent

With the annual influenza vaccination programme underway some GPs have asked the MDU for advice about vaccinating patients who may lack capacity, particularly in the case of elderly patients in nursing homes.

Key points

  • Consent to vaccination required from patients with capacity
  • Act in best interests of patients lacking capacity
  • Nursing home patients need special consideration, especially if their capacity fluctuates
  • Document in the notes decisions regarding patients without capacity
  • Guidance on delegation, patient specific direction and patient group direction.

The Mental Capacity Act 2005 makes clear that all patients should be deemed to have capacity to consent to medical treatment such as vaccination, unless there is evidence to suggest that capacity is limited in some way.

It's important to ensure patients who have capacity have consented to vaccination, or to act in the best interests of those without capacity.

Capacity is time and decision-specific. A decision cannot therefore be based solely on the doctor's prior knowledge of the patient, or on an assumption of capacity based on age, appearance, medical conditions or behaviour.

Assessing capacity

A patient may need to be assisted to reach a decision, and every effort should be made to support an individual to make a decision, if they are able. If capacity fluctuates, for example if a patient has an inter-current infection, then a decision should be postponed to see if capacity is regained when the patient recovers.

When assessing capacity, it needs to be decided, on the balance of probabilities if the patient is able to:

  • understand relevant information about the decision
  • retain that information long enough to make the decision required
  • use or weigh up (evaluate) that information
  • communicate their decision.

If a patient is unable to do any one of these things, then they are deemed not to have capacity.

Best interests

If a patient lacks capacity, it will be necessary to make a decision about vaccination in their best interests. The assessment and the reasons on which the decision was reached should be clearly documented in the patient's records.

Even if the patient has been deemed to lack capacity, they should be encouraged to be involved in the process as far as possible. A decision on best interests should include determining what is in the patient's actual interests at the present time, taking into account any wishes they may have expressed. This is likely to involve a discussion with those close to and caring for the patient, and should include anyone appointed as a Lasting Power of Attorney (LPA), if practical. If a carer, relative or LPA feels that it may not be in the patient's best interest to be vaccinated, then it will be necessary to meet and discuss matters to try and reach a resolution.

If vaccination is felt to be in the patient's best interests, but the patient resists it, then it may be necessary to restrain the patient. The Mental Capacity Act makes clear that restraint must only be used to prevent harm to the patient. Health professionals have a common law right to use restraint to prevent harm to others. You must be able to justify that restraint is necessary, and the restraint must be proportionate and the minimum amount necessary to achieve the vaccination.

Advance planning

In a nursing or residential home, there may be a number of patients who will lack capacity and each needs to be considered individually. Doctors who are responsible for delivering healthcare in nursing homes, or to patients who may have restricted capacity, may wish to ensure the nursing home management team is given enough time before a vaccination clinic so that relatives are informed if appropriate and any concerns or issues can be discussed and documented.

Delegating

In the event that a doctor is delegating the task of vaccination to a practice nurse or another colleague, the GMC guidance on delegation applies (Good medical practice (2013), paragraph 45). When delegating care, doctors must be satisfied that the person providing care has the appropriate qualifications, skills and experience to provide safe care for the patient.

Delegation includes the assessment of capacity and the individual doctor who is delegating the task retains overall responsibility for the care and treatment of the patient.

Patient group directions

The prescription for a flu vaccine can be issued either by a patient specific direction (PSD) or a patient group direction (PGD).

A PGD is a legal framework which allows licensed medicines to be supplied or administered by a named, authorised and qualified health professional to a group of patients who fit the criteria defined in the PGD. It also acts as a protocol for the administration of the medicine or vaccine. The person administering a vaccination or any medication under a PGD will be responsible for selecting appropriate patients and for obtaining each patient's consent or, in the case of patients who lack capacity, assessing and acting in their best interests.

Non-NHS staff, for example nurses employed in a private nursing home, cannot administer vaccines authorised by a PGD. They would need a PSD for each patient. This is a written or electronic instruction from a GP or independent nurse prescriber to supply and/or administer medicine directly to a named patient or several named patients. The prescriber is responsible for assessing the patient(s).

This page was correct at publication on 09/01/2014. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.

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