Consent and the COVID-19 vaccine presentation
My name's Sonia. I'm from the Office of the Public Advocate. And thank you for joining us today.
Well, I'm just about to share my screen, so that I can bring up our PowerPoint presentation, which will hopefully take about half an hour.
So today we are talking about consent in relation to the COVID-19 vaccine.
And this information and the relevance around consent comes from Medical Treatment Planning and Decisions Act.
So, as you'll appreciate, the roll out is coming from the Federal Government, however, it is based on each states and territories' legislation as to the context of how and when consent is obtained.
So just to acknowledge the Traditional Owners of the land on which we are meeting. I am on the land of the Kulin Nation, and the Wurundjeri people. I pay my respects to Elder's past and present and extend that respect to any other Aboriginal people that may be present.
So today I'm hoping for us to go through decision-making capacity. That's going to the starting point for any of your clients/residents/patients around the COVID vaccine.
Briefly, looking at:
- what an advanced care directive is
- what a medical treatment decision maker is
- the difference between significant and routine medical treatment - it can be relevant considering the COVID vaccines — and what would happen if there's no medical treatment decision maker — so what that process would be.
So, decision making capacity is specific to each particular decision. So, in this case, we may be talking about a person's decision-making capacity to make the decision about the COVID-19 vaccine.
A patient, the person, may have capacity to make some decisions and not others. So, you may have residents or clients who are considered to have decision making capacity, about the vaccine, but potentially if they were proposed for chemotherapy or a major surgery it might be that they don't have decision-making capacity for that decision.
So, the legislation is asking that on each occasion of medical treatment - be that the vaccine, medication, surgery - on each occasion, a person's decision-making capacity is assessed.
The Act talks about considering that capacity can be temporary, may not be permanent.
And it shouldn't be assumed that because the patient makes a decision that's in the opinion of other people to be unwise that that means they let decision making capacity.
So, the assessment of someone's capacity is that process of how they're making the decision, not what the outcome of that decision is.
And our legislation in Victoria also talks about that with practicable and appropriate support the patient may be supported to have decision-making capacity to therefore make that decision themselves.
So, the Act is considering that, for some people who have that practical and appropriate support around them, that in fact they have the capacity to go on a make a particular medical decision.
And so, a patient is considered to have decision making capacity, if a health practitioner determines they're able to do the following:
- That they can understand the information that's relevant to that medical treatment decision, so that the resident understands information relevant the decision around the COVID vaccine.
- That the client can retain the information necessary to make the decision.
- That the client can show how they've used and weighed up information as part of that process, and they are able to communicate that decision and some way.
So, as you would probably know, some of your clients and residents may communicate verbally. Others may have forms of communication via assistive technology, through pictures through body language. So, the Act talks about communicating the decision in some way.
And you'll see that first sentence talks about if the health practitioner determines they are able to do the following.
Now the Act has a list of around 16 to 19 health practitioners. And that's any professionals registered with AHPRA at the time that the Act came into force.
Generally, in this context - talking about the vaccine - a health practitioner is probably going to be your client’s registered nurse or a GP. So, it's their role to assess the client's decision-making capacity.
Now, I'm mindful that, in the age care space, for example in residential care, the access to a registered nurse on staff (and therefore assessing capacity), or if GPs are regularly coming into the facility each week, makes that somewhat of a more straightforward, or easier, access and process. For those in the disability sector, where your staff may not be registered nurses, there is the need to start thinking about how your residents can have appointments and access with their GPs, who'll be considering, not only are they suitable for the vaccination, but can also consider your resident's decision-making capacity as well.
Now, considering a person's decision-making capacity, if your resident is assessed by a GP/ registered nurse, as lacking decision-making capacity to make the decision about the COVID vaccine… And of course anything I'm telling you today is also relevant to any medication decision, because prescribed medications are considered to be medical treatment under the Act - This is the same process as what you would go through if someone was recommended the surgery, or for chemotherapy.
However, if we think about for the COVID vaccine and your resident is considered to lack decision-making capacity, the first step is considering whether an advanced care directive has been made by the resident.
So, when I'm talking about an advance care directive here, it's in relation to the legal definition and those eligibility and witnessing requirements under the Medical Treatment Planning and Decisions Act, so I'm not talking about an advance care plan or treatment goals, end of life care. This is around: Is there an advanced directive? And that would have been something for your resident to make, would have had to have capacity to make themselves.
So, if your resident has an advanced care directive, within that: Does it have an instructional directive (which gives the binding instructions upon the health practitioner)? And it is the instructional directive that is essentially informing the doctor whether the COVID vaccine is consented to or refused.
How likely is it that people have made an advance care directive, specifically in relationship to COVID vaccine? I'm not sure. But for it to be relevant and for it to be binding upon the health practitioner, it would have to be in relation to the COVID vaccine.
It may be within that advanced care directive, there is a values directive, and that's more of a statement of what a person's preferences and values are around their health and medical treatment. So, it may not go specifically talking about that they would or would not consent to a vaccination in the future.
If there's a values directive, it may talk about what a person's preferences are, what their views are, on vaccinations in general. And what their health is in general. And there may be something within that that can be applied to the decision, for somebody else to be consenting or refusing that vaccination on the person's behalf.
However, if we assume that your residents haven't made an advanced care directive or it's not relevant to the COVID vaccine, it's about needing to know who is your resident/client/patient's medical treatment decision maker?
So, the Act gives a hierarchy. So, it gives you guidance on where you should start. And where you can go down the list.
So, if you have a resident who themselves has appointed a medical treatment decision maker, then they're number one.
Now the appointment of a medical treatment decision maker, since 2018, would be a form that's called 'appointment of a medical treatment decision maker'. Prior to 2018, it may be that someone appointed a medical enduring power of attorney, and that would still be valid today.
So, if your resident has appointed someone as their medical treatment decision maker, then that's who will be making the decision to consent to or refuse the COVID vaccine.
If the resident/the person hasn't appointed anyone themselves, has VCAT (so the Victorian Civil and Administrative Tribunal)? Have they made a guardianship order, either to a private guardian or potentially to appoint our office (the Office to the Public Advocate), and does it include the authority to make medical treatment decisions?
So, you may have experienced, for example, guardians who have an order from VCAT saying they can make accommodations decisions (so about where a person can live). But if that order doesn't also include medical treatment, then the guardian can't make medical treatment decisions, they can only make those accommodation decisions.
So, if you have any residents that do have guardians, you can't automatically assume that they can be the medical treatment decision maker. You need to know on that order, whether it includes the authority to make medical treatment decisions.
So, if there is no guardianship order, or the guardianship order doesn't include medical treatment decisions, you come down to point number 3.
And that's essentially that it's someone who’s not appointed - be that by the person or by VCAT. But they still have the same legal authorities and responsibilities as if they'd been appointed, as long as that on that list. So, some of you may know of a much longer list prior to 2018 that included grandparents, aunts and uncles and nieces and nephews.
It's a shorter list now, so if you've reached number 3 for your resident/your client, it's looking at:
- Do they have a spouse or domestic partner?
- If not, do they have a primary carer? That’s not a paid primary carer. So that doesn't include any of you who work in disability accommodation and care for the resident. A primary carer would have been that unpaid role of someone maybe prior to coming into supported accommodation… or it may be, for people living in the community, that they have a primary carer.
- If not, does your resident client have an adult child?
- If not do they have a parent?
- And, if not, do they have an adult siblings?
So, if you find the first someone on that list, you then have to make sure that they meet these other four criteria.
So that they are:
- In a close and continuing relationship. Now the intention in the Act for that is so that it's not that you have to go searching for a long lost brother (because they are blood-related and are on that list as an adult sibling), because if they haven't been in a close and continuing relationship they may be haven't had contact with your client, or their contact has only been once a year… They wouldn't really know who your client is, or what's been important to them. Well if they're not in a close and continuing relationship (even if they're on that list) they wouldn't be relevant because they haven't met the close and continuing requirement.
- So, if you've got someone on that list that they are in a close in between your relationship, that reasonably available to be able to make that decision about the COVID vaccine.
- That they're willing to do it. So they have to, of course, want to be making a decision.
- And that they themselves are able. So, of course, your medical treatment decision makers for your clients have to themselves have decision making capacity as well.
So, if you think of your clients and residents who lack decision-making capacity, who have not made an advance care directive, you then go to this hierarchy to see if you can find anyone, if anyone is relevant, from this list that could be the medical treatment decision maker.
If you find one, one is relevant, then it is they who will make the decision about the COVID vaccine, or any other medical treatment.
And they have the authority to consent, or to refuse.
They must be making those decisions based on what the client’s preferences and values are, or what’s inferred to be their values from the life, or if that's not possible, then they are making a decision which promotes their personal and social wellbeing.
The medical treatment decision maker should be making the decision they reasonably believe to be the one that the client/the patient would have made if they had decision-making capacity.
Now, if you have a resident who doesn't have decision-making capacity, no advance care directive, and there is no one on that hierarchy (so there's no other person who can act as a medical treatment decision maker)… At this point, the health practitioner has to consider whether the medical treatment (so whether the COVID vaccine) would meet the definition in the Act to be routine treatment or significant treatment.
So, if there's a medical treatment decision maker, they don't have to worry about this. It is only in the absence of a medical treatment decision maker.
So, a doctor/registered nurse has to think about the COVID vaccine as to whether it's significant treatment. So, does it have a significant degree of bodily intrusion? Are there significant risks having the vaccine? Are there significant side effects to have the vaccine? Or is there significant distress by the patient/the client in having a vaccine, or maybe having a needle. Are they really distressed about that concept?
If the doctor believes that the vaccine does not make that definition of significant treatment, it means that it's considered routine treatment.
Now why this is important, is because if a doctor determines that the COVID vaccine is routine treatment, then doctor can proceed (or the vaccination team, depending on how the vaccines being administered). That vaccine can be administered without consent.
So, the doctor’s never consenting to it. The doctor, if they assess it to be routine treatment, will then write in the client/the patient's medical records to say they’ve considered the treatment to be routine in this patient circumstances. And then the Act says the vaccine could be administered without there being a formal consent.
If, however, the doctor has considered the COVID vaccine to be significant treatment for that patient, that distinction is because the significant medical treatment decisions will come to our office. And we are the ones that become the medical treatment decision maker, to make the decision. We don't make routine decisions. We only make the significant decisions.
So, this slide essentially summarises that.
So, obviously if any of your resident/clients have decision-making capacity, they make their own decision to consent or refuse.
If, however, they are assessed as lacking capacity, and there's no advance care directive, it’s their medical treatment decision maker that will make the decision to consent or refuse.
If there's no medical treatment decision maker, then the doctor has to determine if the COVID-19 vaccine for that patient would be significant or routine treatment.
If routine - the health practitioner has determined that - and they record the details in the person's medical records and the vaccine can be administered without a consent.
If it's significant treatment, that's when they health practitioner would be required to submit a section 63 form into our office.
Now it’s called section 63, because that's the relevant part of the Medical Treatment Planning and Decisions Act that gives the Public Advocate, and the office, the authority to step in, make this medical decision, and then step out again.
So that requires:
- going onto our website
- filling in a form - it's a specific form, section 63 for the COVID-19 vaccine - that’s submitted online.
It comes through to the team that I manage, and then we become involved to go through the process of making a decision to consent or refuse the vaccine.
So, it means you don't have to make an application to VCAT, you don't need a guardian to make this medical treatment decision.
For medical treatment only, for the episode, it comes directly to our team by submitting this form online.
So this is a similar slide, but is sometimes easier to see visually.
So you'll see:
- The doctor or the nurse has determined that the patient lacks decision-making capacity.
- It's not emergency treatment.
- If there was an advance care directive that's relevant to the COVID vaccine, they follow the advanced care directive. They don't have to go to anybody else to ask for decision.
- If there's no advanced directive, you find the medical treatments decision maker, and if there is one, they’re the one that makes the decision.
- If it's not, that's where the determination of whether it's routine or significant needs to be made. And if deemed significant treatment, the request comes to the Public Advocate and we're the ones that step in and act as the medical treatment decision maker for that particular decision.
So, if you find you're in a space that it does come to our office… And, of course, we’re doing this similarly for any of your clients or residents where they may not have decision-making capacity to make decisions about significant medications or significant surgeries… It's the same process of coming through to our office.
Then when it comes to us:
- We will contact the health practitioner to review the information that was put into the form - we might need to know a little bit more.
- We’ll speak with the patient/client/resident, if possible, to see if we can find out what their preferences and values are about the vaccine and, more generally, their preferences and views about their health and medical treatment.
- We’ll speak with some of you who may be the carers of those patients, or an accommodation provider - another relevant party - to ask what you understand that patient’s preferences and values to be about the COVID vaccine and their health.
And then a decision will be made.
And we're making that decision to consent — if we reasonably believe that to be the decision they would have made if they had decision making capacity (that's why we need to know a bit more about the patient to try and know what's been important to them) — or it may be that we make a decision to refuse the vaccination, because it may be that there's something in finding out that information that tells us that the patient would not have consented to the vaccine if they’d had decision-making capacity.
So, we will then make that decision and communicate that to the health practitioner. And, if relevant, to the accommodation provider that's caring for the patient.
And then, if the doctor wants a consent form to be signed, that's given to us, and we'll sign that.
I know that a lot of places are using the COVID consent forms the Australian Government sent out. That's fine. If a GP or other health practitioner has their own type of consent form that's fine. Or some doctors we've come across, they would document themselves on the medical records how and where the consent’s been obtained, and that's what the documentation is of consent.
So, how and if there's a form to sign, is up to what will be given to us. (Similarly, as if we were the family, being the medical treatment decision maker.)
So, this is a lot of information to sometimes hear on one sitting. And while we're turning our minds to this being around the COVID vaccine, of course, it is applicable to any medical treatment.
But if you go onto our website on the front page, I think still, there's a bit of a guideline to the administration of the COVID vaccine in relation to these consent type issues…. which is about a two-page document essentially covering some of the things we've talked about today.
We also have a medical decisions tab and under there while you'll find lots of different headings, lots of different resources as well, you'll also see that's where you would go to complete the section 63 form. So, on our website under the medical decisions tab.
However, you might find that you want to talk about a client or a resident, more specifically, or collectively… You can contact our telephone advice service — so Monday to Friday nine to 4.45. And one of the advisors can talk things through with you again, or more specifically.
And just as an aside, we also have an ‘OPA Updates’ newsletter, and if you wanted to go onto our website you can join the mailing list so when other presentations come out, or other relevant information, that can be another way to find other sources of resources and support.