LawTalk Blog

Covid-19 Vaccine: Who decides if my loved one gets vaccinated? (Advance Care Directive)

Covid-19 Vaccine

"Will you get the Covid Vaccine?" has been a common question among friends and families in recent days.

Even more so, the debate around the Covid-19 Vaccination continues to take centre stage on many social media platforms, news headlines and even parliamentary debate floors.

To 'jab' or not to 'jab' - that is the question

In Australia, the Covid-19 Vaccination is completely free and not compulsory. That means each individual (or their guardian) chooses whether or not they receive the vaccine and is also required to sign a Consent Form.

Whilst each individual can undertake their own research and decide whether they will receive the vaccine, it is entirely a different question when it comes to making decisions for loved ones who are no longer capable of making such a decision.

Who can make decisions for an incapacitated Family Member? 

If your parent has made valid Advance Care Directives before losing capacity, the Substitute Decision Makers will be signing the vaccination consent on behalf of your parent.

It is important to note that if you have been appointed as the Enduring Power of Attorney for your parent but have not been appointed as a Substitute Decision Maker under his/her Advance Care Directives, you do not have the power to make healthcare decisions on their behalf.

An Advance Care Directive is when someone appoints Substitute Decision Makers to make decisions relating to one's healthcare and other personal matters.

Often these documents will set out one's wishes to guide decisions on their future healthcare, any particular healthcare one refuses, and in what circumstances. More than one Substitute Decision Maker can be appointed - either jointly and/or severally.

Decision Makers appointed jointly and severally make decisions together or separately.

Decision Makers appointed jointly make decisions together with the other appointed decision-makers - both will have to agree to vaccinate their loved one.

If your parent has not done a valid Advance Care Directive before losing capacity, you would then be required to make an application to SACAT seeking that a Guardianship Order concerning your parent.

So, what happens if you have been appointed a Substitute Decision Maker under your loved one's Advanced Care Directive? And what happens if you have been jointly appointed and the Decision Makers disagree on whether or not to vaccinate your loved one?

Disagreement of Substitute Decision Makers

When deciding whether to vaccinate their loved one, Substitute Decision Makers may not always agree.

The decision to administer the COVID-19 vaccine falls within the scope of the powers given to Substitute Decision Makers under Advance Care Directives. Further, a dispute relating to the provision of the vaccine falls within the scope of a dispute that may be dealt with by the Office of the Public Advocate or SACAT.

The following people may go to the Office of the Public Advocate or SACAT for assistance with disputes concerning the administration of the COVID-19 vaccine:

  • the person who gave the Advance Care Directive;
  • a Substitute Decision Maker appointed under the Advance Care Directive;
  • a health practitioner providing, or proposing to provide, health care to the person who gave the Advance Care Directive; or
  • any other person who satisfies the Office of the Public Advocate or SACAT that they have a proper interest in a particular matter relating to the Advance Care Directive.

The Office of the Public Advocate and/or SACAT will consider the Substitute Decision Makers' competing views, taking into account any wishes and views expressed by the person who gave the Advance Care Directive, the opinions of a medical practitioner, and any other relevant circumstances. Then, they will conclude as to what is in the best interests of the patient.

 

If you require assistance with a disagreement about vaccinating your loved one or would like to arrange an Advance Care Directive, please contact our Wills and Estates team.

Research for this article was undertaken by Legal Clerk, Catherine Kanellos.


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Get in touch with today's blog writer:
Lynn Pham

Senior Associate in Wills and Estates  and  Elder Law

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal and South Australian legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.


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