In November 2021, the Health Secretary announced mandatory COVID-19 vaccinations for frontline healthcare staff, with those declining vaccination being either re-deployed or potentially made redundant. A similar announcement had been made earlier regarding care home staff (Lee and Jackson, 2021). This raises the question: if an individual comes for vaccination because of such a ‘threat’, is their consent to vaccination valid, and is the nurse carrying out the vaccination acting in accordance with the Nursing and Midwifery Council (NMC) Code (NMC, 2018)?
Consider the situation where a registered practitioner is about to administer medication to a patient who has capacity. The patient tells them they do not want the medication, but that they are being pressured to take it—should the practitioner administer the medication? It is established law that a patient with capacity has the right to refuse any and all interventions (Re T, 1992), and that for consent to be valid it has to be given freely, which does not appear to be the case here.
Arguably this is the situation some nurses and other health professionals may encounter following the announcement of mandatory vaccination. Picture a situation where an individual comes to be vaccinated and when asked if they consent to vaccination, responds: ‘I don't want the vaccination but I will lose my job, so I don't have a choice’. Is this consent valid or is the practitioner who vaccinates this individual in breach of their code of conduct?
The law and professional guidance are both clear that for consent to be valid it must be both informed and freely given. The courts, in Re T (1992), considered the notion of undue influence and external pressure influencing the patient's decision, with Lord Justice Staughton stating:
‘In order for an apparent consent … to be less than a true consent … there must be such a degree of external influence as to persuade the patient to depart from her own wishes.’
Re T 1992 paragraph 57
This is reflected in the guidance from the professional bodies. The NMC Code is unequivocal, stating that a registered nurse/nursing associate must:
- 4.1 balance the need to act in the best interests of people at all times with the requirement to respect a person's right to accept or refuse treatment
- 4.2 make sure that you get properly informed consent and document it before carrying out any action (NMC, 2018).
The NHS public information website notes that:
‘For consent to be valid it must be voluntary … made by the person and must not be influenced by pressure from medical staff, friends or family.’
Although this does not specifically mention influence from an employer, it is difficult to imagine many things more pressured than ‘if you do not have the vaccine you will lose your job’.
The guidance from the General Medical Council (2020) is no less clear, advising doctors to consult their medical defence body or seek legal advice if they ‘believe a patient is under such extreme pressure to agree to or refuse a particular intervention that they can't exercise free will’.
It seems difficult to argue that consent in the situation posed by mandatory vaccination is freely given. Given the requirement for ‘properly informed consent’, if a registered practitioner proceeds to administer the vaccine it is argued that this action is in breach of the Code.
The author believes fully in the professional obligation to protect patients and colleagues by being vaccinated. The concern here is the very specific question of potential breach of the Code by vaccinating in the absence of valid consent, which seems a first step on a very uncertain path.