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"it's worth a shot…" Guidance note issued by the President of the High Court in relation to the vaccination of wards of court against Covid-19

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There are more than 2,000 wards of court in Ireland, most of whom are elderly and vulnerable people. A substantial number of wards of court are in nursing homes or other residential care facilities.

When dealing with the Ward of Court list in December 2020, Irvine P. said that she had written a letter to the Chief Medical Officer concerning the vaccination of wards of court.  Irvine P. said that she wanted to ensure that wards of court would get the vaccine, on the direction of their clinicians, without undue delay. She further stated that she hoped that it would not be necessary to have formal applications brought in every case for an order permitting the vaccine to be administered.
 
Guidance
 
The HSE has since published a memo titled 'Memo re Guidance re Inpatient Wards of Court COVID 19 Vaccination Consent 15 March 2021' (the "Memo"). The memo helpfully contains a flow chart which sets out the steps required to obtain consent from a ward of court in relation to administering a Covid-19 vaccine. The memo can be accessed here.
 
More recently, Irvine P. has published a guidance note in relation to the vaccination of wards of court / intended wards of court (the "Guidance") which we have set out below as follows:
 
  1. Vaccination of all wards of court against Covid-19 should proceed as per the practice applied in wardship in respect of the delivery of the flu vaccine.  Unless an objection is notified, the ward’s treating clinician should decide, having regard to the ward’s medical history and a balancing of all relevant risks, whether or not the vaccine should be administered. The organisation where the ward is resident should inform the Committee that the vaccine is to be administered no later than [two days] before the proposed date of administration where possible.
 
  1. If the Committee objects to the ward receiving the vaccine, that objection must be made to the organisation where the ward is resident within 7 days of notification of the intended administration of the vaccine and must be accompanied by medical opinion or other material demonstrating why it is not in the ward’s best interests that they receive the vaccine.  The ward’s treating clinician should be asked to review any such medical opinion or documentation and decide what is in the ward’s best interests.  The Committee will be notified of the clinician’s decision and, where the clinician recommends vaccination, unless an application is made to the court within 7 days of notification of the decision, vaccination will proceed.
 
  1. Where the ward or an intended ward objects to receiving the vaccine, the Committee or the intended ward’s guardian ad litem should be notified. In light of the objection, the ward/intended ward’s treating clinician should be asked whether, in his/her opinion the ward/intended ward is capable of making an informed decision to object to the administration of the vaccine. If they are found not to have capacity to make such a decision, the clinicians opinion must be notified to the ward and their Committee/guardian ad litem in writing. Such notification must advise the recipient that in default of an application to the court within 7 days of receipt of that notification, vaccination will proceed.
 
  1. If, following assessment, the clinician is satisfied that the ward/intended ward has capacity to object to the administration of the vaccine, the vaccine should not be administered.
 
  1. In any case in which the refusal of a ward/intended ward to accept the vaccine could adversely impact on their placement, the matter should be listed before the court for directions.
 
COVID-19 vaccines have brought much needed relief in the fight against a global pandemic that has dramatically changed life here and abroad since March 2020. There is a general presumption that individuals have capacity to consent to vaccination.  However, there may be times where individuals require additional supports to assist them in their decision-making. The Guidance from the President of the High Court together with the Memo from the HSE therefore represent a welcomed development in terms of assisting healthcare professionals in approaching the matter of consent. The direction from the President of the High Court is underpinned by the principle that it is in the best interests of most people who are wards of court to receive the COVID-19 vaccine as soon as possible.
 
Reforms / Assisted Decision Making Capacity Act 2015 ("2015 Act")
 
The primary focus and intent of the 2015 Act is to support all persons to make their own decisions as far as possible. The abolition of the wards of court system is a key reform envisaged under the 2015 Act. Wardship, under which a person may be declared to be ‘of unsound mind’ and incapable of managing his or her affairs has long been recognised as a blunt instrument and it will be replaced by a new graduated framework of supports aligned to a person’s need.
 
Following its approval last year of a timebound, costed plan for the establishment of the Decision Support Service, the Department of Justice publicly stated its support for commencement of the Act in mid-2022.
 
 
Written by Eimear Burke and Hannah Unger. 

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