The Plenary of the Constitutional Court, in a ruling presented by magistrate Juan Carlos Campo, has dismissed the amparo appeal filed against the decision to authorize the vaccination of an elderly woman who was hospitalized in a residence for the vaccine against Covid-19 under the protection of the provisions of article 9.6 of the Patient Autonomy Law.
The appeal for amparo was filed by the son and guardian of the affected person, an elderly woman suffering from severe dementia (caused by the neurological disorder called “Alzheimer’s disease”) that prevented her from giving her consent to said action. sanitary.
As reported by EL MUNDO, the old woman was hospitalized in a senior center in Las Palmas de Gran Canaria. Her son and her legal representative directly opposed the woman being vaccinated against the coronavirus, but a judge authorized her to be inoculated against the virus. The son then filed an amparo claim for alleged violation of fundamental rights to equality, the right to physical and moral integrity and the right to privacy.
The events occurred in the spring of 2021 when the legal guardian of the elderly woman sent a letter to the Ingenio de Las Palmas Socio-Health Center informing those responsible that she did not give consent or authorize her mother to receive the vaccine against Covid or any type of annual flu vaccines due to “civil and legal insecurity” of such drugs. There came a time when the old woman became the only resident of the center not vaccinated, so she was subject to very strict rules of distancing in relation to the other elderly people. The Court of First Instance Number 2 of Telde authorized the vaccination of the octogenarian and later, the Provincial Court of Las Palmas de Gran Canaria confirmed this criterion.
The TC considers that the administration of a vaccine, as it is the inoculation of a “preparation” (of variable content) into the human body for the purpose of provoking an immune response, falls within the powers of self-determination guaranteed by the fundamental right to personal integrity recognized in article 15 of the Constitution. The Plenary also considers that it is an action that can produce adverse (unwanted) side effects that, although they are statistically minor, determine a potential risk to health, which also leads to the scope of protection granted by this fundamental right. . Therefore, a vaccination without consent must comply with the general requirements of restriction of the fundamental right to personal integrity, which requires the existence of a precise legal authorization, aimed at achieving a legitimate purpose, as well as overcoming a proportionality judgment.
The Constitutional also notes that vaccination can pursue legitimate purposes suitable to justify, in a given context, the restriction of the fundamental right to personal integrity. Vaccination has, at this point, a double protective dimension, since it can serve both to protect the affected person and to achieve goals of general interest, among which the protection of collective health in epidemic contexts stands out.
In this last dimension, the Plenary holds that public vaccination policies are linked to the constitutional duty of public powers to protect collective health with preventive measures. In the case specifically raised, the Plenary of the TC considers that the enabling legal norm of interference in the right to personal integrity (article 9.6 of the Patient Autonomy Law) has the exclusive purpose of protecting the interests of the affected person in a situation in which she cannot provide valid consent on her own and in a context of danger to her health.
The sentence considers that the contested judicial resolutions, which authorized the practice of vaccination, correctly weighed up the interests of the person with disabilities, since, due to the evolutionary state of their disease, they lacked any possibility of expressing their will and Vaccination reported, in a weighting based on objective criteria according to the specific context in question, greater benefits than harm from the point of view of the protection of their individual health.
Prior to the issuance of the sentence, the Plenary session dismissed by order the recusal of the rapporteur magistrate, Juan Carlos Campo, formulated by the amparo claimant the day before, for being manifestly untimely.
Legal sources explain that, during the pandemic, the TC has admitted three different types of lawsuits related to vaccination against Covid-19. On the one hand, appeals on vaccination in nursing homes agreed by a judge against the criteria of the family (this is the case of this first sentence); shelters on the vaccination of minors where one of the two parents was opposed to the inoculation of the vaccines; and, finally, lawsuits against the Basque Law on compulsory vaccination for the coronavirus.
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