This article attempts to shed some light on the current legal framework that exists in relation to mentally ill patients and makes suggestions for improving the statutory regime in Barbados.
Published on February 20, 2021
by Attorneys-at-Law Anthony D. Francis-Worrell LLB (Hons) and Graeme A. J. Brathwaite LLB (Hons)
Introduction
Perhaps you may not have thought about it before, but one of the most enjoyed rights as a human being is the right of autonomy. The ability to choose something as simple as the colour dress to wear to that special dinner,which motor vehicle to purchase, or in mostr ecent times whether or not to take the COVID19 vaccine, is an autonomous privilege we enjoy. The prospect of a vaccine as a “cure all” for the current pandemic has been met with as much jubilation as there is scepticism.Understandably it has been difficult for some to process all of the information to arrive at a decision. However,there are those unfortunate instances, where because of some mental illness, a person is rendered incapable of making decisions on their own. What are the rights of such persons relative to the choice of taking the COVID-19vaccine?
The UK Decision E (Vaccine) (2021)
On the 20th January 2021 the UK Courts inE(Vaccine) had the seminal opportunity to consider whether a mentally ill patient shouldreceive a vaccination for Covid-19 despite objection from family members. The patient was diagnosed with dementia and schizophrenia and her son objected to her being inoculated out of scepticism surrounding the vaccine. Despite his objection, on the evidence presented, the patient had previously had the flu vaccine and she placed a great deal of trustin her doctors, who favoured vaccination. The Court on examining the UK Mental CapacityAct and the evidence before it, decided that it was in the best interest of the patient to take the vaccine especially in view of the risk Covid-19presented.The decision of the UK Court raises particularly interesting questions as to the rights of mentally ill patients in their choice of whether or not to take the COVID-19 vaccine. The question is particularly important when considering the duties of a Receiver appointed by the Barbadian Courts.Once the Receiver is appointed he is empowered to do or secure the doing of all such things as appear to be necessary or expedient for the maintenance or other benefit of the patient.Admittedly, the son in E(Vaccine) [2021] was not an appointed Receiver, but the decision offers great insight into the inefficiencies of the present system in Barbados.
The Barbados Mental Health Act
It is incontrovertible that persons suffering from mental illnesses are unable to make appropriate and informed decisions as to their affairs. In such instances in Barbados under theMental Health Act, any person may apply to be appointed Receiver to manage the affairs of the patient. But does the right to manage the affairs of the patient include the right to decide for them whether or not they should take the COVID19 vaccine? The short answer is yes - as we shall later discover.
Section 18 of the Barbados Mental Health Act provides, “The court may, with respect to the property and affairs of a patient, do or secure the doing of all such things as appear to be necessary or expedient for the maintenance or other benefit of the patient…”. Conversely,The UK’s Mental Capacity Act particularises in great detail an inexhaustive list of considerations which must be taken into account prior to any decision being made by a Receiver on behalf of a mentally ill patient.
The UK Mental Capacity Act
Under section 4 of the UK Mental Capacity Act a number of factors are enumerated when determining what is the “best interests” of thePatient. For instance, section 4 (2) – (6) provides:
(2) “The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.(3) He must consider –(a) whether it is likely that the person will at sometime have capacity in relation to the matter in question, and(b) if it appears likely that he will, when that is likely to be.
(4) He must, so far as reasonably practicable,permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.
(5) Where the determination relates to life sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.
(6) He must consider, so far as is reasonably ascertainable -(a) the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),(b) the beliefs and values that would be likely to influence his decision if he had capacity, and(c) the other factors that he would be likely to consider if he were able to do so”.Noteworthy is that these factors are not exhaustive. However, it does provide some guidance on what facts should be taken into consideration before a Receiver can make a decision in determining what is in the best interests of the Patient.
The Need for Reform
The Barbados Mental Health Act is archaic and in dire need of amendment. This much was stated by the Court in the Barbadian case of Elias v Levers (2016) when The Honourable Madam Justice Margaret A. Reifer, Judge of the High Court (as she then was) opined, “Given the increase in applications of this nature, it has become clear that the current legislation needs amendment or alternatively a new statutory or legislative regime, similar perhaps to the UK’s Mental Capacity Act 2005”.In Barbados it appears that however uninformed, a Receiver can decide whether or not a mentally ill patient should receive the COVID-19 vaccine. In general the Receiver is free to make any decision regarding the patient regardless of what the patient may or may not want at the time of the decision.It would appear that so long as the Receiver can reasonably illustrate that the decisions taken by him or her were “necessary and/or expedient and for the maintenance and benefit of the patient” then he or she is free to choose on behalf of the patient whether or not the patient should receive the vaccine.
Prudence dictates that the opinion of the patient’s doctor must first be sought by the Receiver before making any medical decisions.However, the situation is particularly concerning when considering the religious or personal beliefs of a patient which may run counter to the Receiver’s wishes for the patient to be vaccinated. This is a most unacceptable position for it puts the patient at the whim and fancy of the eager and anxious Receiver or the sceptical and ambivalent Receiver.
Disclaimer: The views expressed in the preceding article are those of the authors only and is not intended as, and should not be taken as, legal advice. The use of the information provided in these pages should not be taken as establishing any contractual or other form of attorney-client relationship between any of the attorneys at Versus Legal and the reader or user of this information. Do not act or refrain from acting based upon information provided in this article without first consulting an attorney about your particular factual and legal circumstances.
