Simon Says

Bringing clarity to the inner workings of our legal system

COVID-19 vaccines in prison and informed consent

In federal prisons, treatment is not to be provided or continued unless the prisoner gives informed consent. Prisoners have the right to refuse treatment or withdraw from treatment at any time.

To qualify as informed consent, the prisoner has to be advised of and have the capacity to understand:

     (a) the likelihood and degree of improvement, remission, control or cure as a result of the treatment;

     (b) any significant risk, and the degree thereof, associated with the treatment;

     (c) any reasonable alternatives to the treatment;

     (d) the likely effects of refusing the treatment; and

     (e) the inmate’s right to refuse the treatment or withdraw from the treatment at any time.

For prisoners who do not have the capacity to understand these matters, provincial laws govern health care choices.

At the time of the publishing of this blog post, prisoners cannot be required to receive a COVID-19 vaccine without their informed consent. However, it is worth remembering that prisons have an obligation to take all reasonable steps to ensure that the penitentiary environment is safe, healthful, and free of practices that undermine a person’s sense of personal dignity.

As such, prisoners who choose not to receive a vaccine may face certain restrictions. It is unclear at this stage what, if any, restrictions there could be on those who refuse to be vaccinated. However, these could include restrictions on visits, programming, institutional employment, etc. Prisoners should be aware of this when making the choice of whether or not to be vaccinated, and they should contact a lawyer if they are concerned about the restrictions they are experiencing as a result of their choice.

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