As the U.S. continues the rollout of the COVID-19 vaccine, the Massachusetts Guardianship Policy Institute is concerned about the ability of persons who may lack legal capacity to provide consent to accept the shot if they don’t have a health care proxy or guardian to act for them. Since residents of nursing homes have been given priority for the vaccine, time is of the essence to make sure that each person’s right to give informed consent is properly exercised, whether on their own, through a Health Care Proxy (either activated or about to be activated) or a guardian.
While we realize the current COVID-19 vaccines have been deemed safe by the FDA, no vaccine is 100% risk-free. There also are personal considerations, such as a person’s religious beliefs, that need to be taken into account. If an incapacitated person does not have a Health Care Proxy or guardian in place, these factors might not be considered at all. The right to give informed consent, and to refuse treatment, cannot be honored only in the breach.
The Massachusetts Guardianship Policy Institute’s Report, “Nursing Home Policy Reforms Signaled by the COVID-19 Crisis,” issued in May 2020, highlighted the need for proper representation of all incapacitated persons. The introduction of the vaccine is a case in point. Any incapacitated person who does not already have proper decisional support first must receive access to a guardian to provide proper consent before the COVID-19 vaccine is administered. Meeting this legal and constitutional right may delay the process of receiving the vaccine for some. We believe, however, that the right of these individuals to have their wishes be known and considered is as important as their right to treatment, should they elect it.