Undue Influence from the Family in Declining COVID-19 Vaccination and Treatment for the Elderly Patient

Asian Bioethics Review https://doi.org/10.1007/s41649-023-00249-2 PERSPECTIVE Undue Influence from the Family in Declining COVID‑19 Vaccination and Treatment for the Elderly Patient See Muah Lee1,2 · Neal Ryan Friets2 · Irene Tirtajana1 · Gerard Porter3 Received: 6 January 2023 / Revised: 20 March 2023 / Accepted: 22 March 2023 © National University of Singapore and Springer Nature Singapore Pte Ltd. 2023 Abstract This paper examines a patient with borderline mental capacity, where the healthcare team is conflicted about how to proceed. This case demonstrates the complicated intersection between undue influence and mental capacity, allowing us to explore how the law is applied in clinical practice. Patients have the right to decline or accept medical treatments offered to them. In Singapore, family members perceive a right to be involved in the decision-making process for sick and elderly patients. Elderly patients, dependent on mainly family members for care and support, sometimes submit to their overbearing influence resulting in decisions that fail to protect the patients’ own best interests. However, the clinicians’ own well-intentioned influence, driven by a desire for the best medical outcome can also be undue, and neither influence should seek to be a substitution for the patient’s decision. Following Re BKR [2015] SGCA 26, we are now obliged to examine how mental capacity can be affected by undue influence. A lack of capacity can be found when a patient fails to appreciate the presence of undue influence or is susceptible to undue influence due to their mental impairment causing their will to be overborne. This then paves the way for the health care team to decide based on best interests, because the patient is determined to be lacking in mental capacity. Keywords Undue influence · Clinical ethics · Autonomy · Singapore · Law · Capacity Patients with mental capacity have the right to decline or accept medical treatments offered to them. Mental capacity, though rebuttable, must be presumed. In * Neal Ryan Friets 1 Ng Teng Fong General Hospital, Singapore 2 Centre for Biomedical Ethics, Yong Loo Lin School of Medicine, National University of Singapore, Singapore 3 Edinburgh Law School, Edinburgh, UK 13 Vol.:(0123456789) Asian Bioethics Review Singapore, this fundamental principle is protected by the Mental Capacity Act 2008 (n.d.) (MCA SG) on the assumption that such treatment decisions are made voluntarily by the patients. In reality, however, medical decisions for the sick and elderly in Singapore are frequently made together with families, and seldom individualistic in nature. Family members perceive that they too have a right to participate in the choices to be made for the patient. Elderly patients, dependent on family members for care and support are sometimes the weaker parties in such joint decisions, even if ostensibly the decisions are theirs to finally make. What can the health care team do to protect the patient from making a bad decision of refusing treatment, under the shadow of undue influence from family members? We use a case to illustrate the impact of undue influence from the son in a patient’s refusal of COVID-19 treatment and examine whether and how treatment can be ethically and legally justified and given. Case Mdm C, 75-year-old widow, not fully vaccinated, was admitted for COVID-19. Her son Mr S, a casual laborer, was her only source of support. Mr S chose not to be vaccinated because he did not believe COVID-19 was serious. He was the dominant communicator during consultations, while Mdm C was reticent. He said reliance on natural immunity was the best. He also tendered the view that Mdm C herself was not keen to have the anti-COVID treatment. Mr S said he could not afford the treatment for Mdm C. Her usual medical bills were already costly despite state subsidy. He had been contributing his own Medisave savings, and more, for her care all these years. Mdm C had recurrent admissions in the past for poor control of diabetes. Prior to the current admission, Mdm C, although frail, was independent in activities of daily living. She had no notable visual or hearing impairment. Mdm C accepted the views of her son and decided to forgo COVID-19 treatment. Nevertheless, she related that she was told, and hopeful, of the possibility of surviving without taking the anti-COVID medications. She was tearful when told about the possible consequences of her decision, including deterioration and death. Mdm C and her son were also informed that failure to treat risked her having “long” COVID-19 (Greenhalgh et al. 2022). The primary team, responsible for managing COVID-19 cases, referred Mdm C to the psychiatrist Dr P1, who decided that the patient had mental capacity to decline treatment. Two days later, while waiting for discharge, she developed breathlessness. Her oxygen saturation was 92% (normal level is 95% or higher). When told she was not medically fit for discharge and needed monitoring and treatment, she declined and said that she understood she might die as a consequence. When asked if her decision was made because she was fearful of her son getting angry, she shook her head and did not answer. The nurse sensed an air of resignation. The primary team was keen to detain her against her wishes to start the standard intravenous treatment at that time (remdesivir). Detaining her would pose no challenges as realistically, she was in no physical state to resist. The nurses were sure that Mdm C’s decision was made out of fear of Mr S and being a burden to 13 Asian Bioethics Review him. The medical social worker commented that Mdm C was not vulnerable in the “legal” sense of the word under the Vulnerable Adults Act 2018 and was unlikely to fall under the remit of the Adult Protective Services, so there was no justification for state intervention under these safeguarding mechanisms. Some members felt they had failed Mdm C when they did not treat upon admission and it was against their conscience not to treat before the window of opportunity completely shut. They were prepared to administer the treatment, notwithstanding the opinion of Dr P1, citing as a basis the medical necessity of saving lives. Others objected and had also objected to a second psychiatric referral, as they felt this was tantamount to “seeking and shopping” for another opinion just because they did not like the first. On this latter objection, they were overruled by the majority. It was decided that they needed a clearer understanding of her mental capacity against the background of family dynamics in the treatment decision. A second psychiatrist, Dr P2, therefore, was called. In Dr P2’s assessment, Mdm C lacked mental capacity because her mental state was overwhelmed by the situation of her illness and the influence of her son, thus sanctioning treatment based on best interests as determined by the team. Mr S disputed this and wanted to bring the patient home. He (...truncated)