The President of the High Court signalled in December 2020 that COVID-19 vaccines could be administered to Wards of Court in a similar manner to flu vaccines. Subsequently, we acted for the Health Service Executive (HSE) in a case which involved an elderly a Ward of Court with dementia and various complex psychiatric conditions, where the Ward herself objected to the administration of the vaccine.
Test Case
The question of whether a Ward of Court, who by legal definition is deemed to lack decision making capacity, can be vaccinated against COVID-19 against their will, was a novel one and the HSE client had received extensive policy guidance from various medical bodies. Given the urgency of the pandemic, and the need to vaccinate as many vulnerable people as quickly as possible, our client was faced with a very pressurised and unclear situation, and this case was essentially a test case for other similar Ward of Court cases.
Having heard extensive legal submissions, our advice to our client was approved by the High Court, with the judge noting that she was satisfied the HSE’s decision not to seek an order permitting coercive vaccination was correct. This case has clarified the position in respect of the vaccinations of Wards, and also may have broader applicability around the administration of non-urgent medical treatment to Wards.
Guidance note
The President of the High Court has since issued a guidance note on the matter, which we have summarised as follows:
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Unless the Ward objects, COVID-19 vaccinations to be administered in the same manner as flu vaccines i.e. following a risk / benefit analysis by the Ward’s treating clinician
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The Committee is to be given at least two days’ notice where practicable
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If the Committee objects to vaccination, they must set out their objection within seven days for review by the treating clinician
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Vaccination can then proceed if the treating clinician believes it to be in the Ward’s best interest, unless an application to the High Court is made by the Committee
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Where a Ward or intended Ward objects to vaccination, the Committee or Guardian ad Litem must be notified and the treating clinician must advise whether the Ward is capable of making an informed decision on the matter
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If the Ward or intended Ward is deemed to lack capacity to make an informed decision, vaccination will proceed by default unless an application is made to the High Court
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However, if the Ward or intended Ward is deemed capable of making an informed decision, the vaccine should not be administered
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If the refusal of a vaccine could adversely impact the placement of the Ward (or intended Ward), the case should be listed in the High Court for directions
Conclusion
The administration of COVID-19 vaccines to Wards of Court poses unique considerations which highlight the importance of the provisions of the Assisted Decision Making legislation, which we have considered further here
For more information, contact a member of our Health & Prosecutions team.
The content of this article is provided for information purposes only and does not constitute legal or other advice.
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