May 12, 2021

Social judges dictate the first convictions against governments for not protecting the toilets

After months of endless days at UVIS fighting healthcare pressure in hospitals and health centers, health groups have made the leap to the courts to claim their rights. For weeks they were facing a health emergency without the necessary means to fight the virus, the autonomous communities and the central government recognized the difficulties they were facing in acquiring protective equipment in an international market that became a souk where all countries sought the same. Given the shortage of material and the effort made by these professionals to stop the expansion of COVID-19 in hospitals and health centers, various judgments begin to blame administrations for having been unable to protect their workers. At the moment they are being tried by the Social, while the Prosecutor’s Office studies what to do with the 52 complaints filed against the Government in criminal proceedings and other courts analyze similar claims against the autonomous governments.

The epidemic decimates toilets on the front line against the coronavirus: they are already 13.6% of those infected

The epidemic decimates toilets on the front line against the coronavirus: they are already 13.6% of those infected

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The social courts of Teruel and Huesca and the Social Chamber of the Superior Court of Justice of the Basque Country have concluded in three recent rulings that the shortage of material has violated the rights of the toilets and condemns the administration to provide adequate protection equipment these professionals to avoid future infections.

In a novel and extensive sentence, Judge Elena Alcalde, of the Teruel Social Court, concluded on June 3 that the Aragonese Health Service, the Aragonese Institute of Social Services and the General Deputation of Aragón had violated the rights in the prevention of occupational risks of officials, statutory personnel and labor personnel, of classification group A, subgroups A1 and A2. “Putting his life, physical integrity and health at serious risk, and damaging his right to physical integrity and protection of health,” the ruling continues. On the same line, on June 24, his partner Eduardo José Bernués Mateos, of the Social Court of Huesca, which concluded that “the fundamental right to physical integrity” of the health workers had been violated.

The magistrate Mayor charges in the ruling against the Aragonese Government chaired by the socialist Francisco Javier Lambán for not having collected material in the months prior to the virus breaking into our country. “The unpredictability that the [administraciones] defendants is distorted in response to the numerous notices and recommendations of the WHO, since January 2020, and increased in February 2020, and also, with the Government’s own reports since January 23, 2020, from which it follows that they knew these data from the WHO, and therefore, they could foresee the way of spreading the virus between people, “says the sentence, promoted by a complaint filed by the Fasamet union on April 30.

“The way has been smoothed out” for future complaints

Famaset also promoted the same demand of the Huesca social court. From the union they are waiting to see what happens in the province of Zaragoza, where they have also taken the same action. The lawyer who has defended these three procedures explains that the sentences obtained can have practical effects for those health workers who have been infected or for family members of health professionals who have died from COVID-19 and who are going to take legal action. “They have smoothed the path of the causal link. The death or contagion is linked to a previous cause, which is the lack of PPE, and this is confirmed in two of the three Aragonese provinces,” explains lawyer José Manuel Aspas, spokesman. of the union, which confirms that the autonomous government has announced that they are going to appeal the two sentences issued.

In her presentation, the magistrate Mayor praised the daily work carried out by the health workers during the days with the greatest healthcare pressure, until assuring that “they have developed it heroically”, “despite the serious and imminent risk to their life and health by their exposure to Covid-19, and this, fundamentally, due to the lack of adequate individual protection means, even though they could have interrupted and abandoned their activity, but thanks to their vocation to serve others, not only have they not paralyzed their work ”

Along the same lines, the Social Chamber of the Superior Court of Justice of the Basque Country ruled, although with a less obsequious tone towards the health profession than that of the magistrate of the Teruel court. The Basque court “partially upheld the lawsuit” of the union Ezker Sindikalaren Konbergentzia (ESK) and determined that the Basque Health Service Osakidetza had breached “the regulations on the prevention of occupational risks” during the pandemic.

Lawsuit filed in Andalusia

Not in all communities and in all courts have these actions borne fruit. In Andalusia, the lawsuit promoted by the Autonomous Council of Nursing Graduates against the Health Minister, Jesús Aguirre, It was archived on June 16. The magistrates of the Andalusian Superior Court of Justice discharged the responsibility of the regional government by stressing that the “invoked structural insufficiencies of the public health system in Andalusia cannot be imputed, either by fraud or recklessness, to the current Health Minister”. Likewise, regarding the “insufficiency or lack of promptness in the acquisition” of material, they stressed in the order that this situation was “a general phenomenon in all of Spain”, and that given its “notorious” difficulty “it cannot be invoked as an indication, nor even preliminary, of a breach of the director’s behavior. ”

CSIF also intends to seat the senior officials of the Ministry of Health of the Generalitat Valenciana on the bench for the same reason, the lack of protective equipment. Currently, the union’s complaint is in the Autonomous Superior Court of Justice after an investigating court has sent the institution to the complaint because there is a graduate among the high-ranking officials, the Minister of Health, Ana Barceló, as reported by the newspaper Las Provincias. In Madrid, the AMYTS union has also denounced the Ministry of Health before the Supreme Court and the Ministry of Health before the Superior Court of Justice of Madrid, sources from the group assure that for now the two complaints “are ongoing”.

Highlights the rate of contagion among healthcare

Pending the evolution of these procedures, the rulings already issued recognize that exposure to COVID-19 at work is a serious and imminent danger, “as it is rationally probable that its effects will materialize in the future and could suppose a serious damage to the health of workers, even if it does not manifest itself immediately, “the Basque magistrates explain in the judgment issued on July 1. They also recall that the high exposure to the virus “has materialized in a high rate of contagion among health personnel, with higher incidence than the rest of the population, “highlights the magistrate of Huesca. According to data provided by the Ministry of Health in March, 13.6% of those infected with coronavirus in Spain at that time belonged to the group that worked in the area of health.

“The risk faced by the health workers is not trivial, but it is a serious risk in view of the fact that it can cause significant conditions, even leading to death,” details the Teruel court ruling, which insists that “the regulations of Occupational risk prevention imposes a legal obligation on the Administration, as an employer, to protect workers, which necessarily also entails the obligation to provide them with preventive means “. Given this presentation, he concludes that “the protection of the safety and health of workers has not been adequately provided” by the Aragonese government “due to the incorrect planning, forecasting and management of EPIS stocks.”

From the administration it was alleged that the shortage of material and the difficulties in acquiring it were linked to causes “of force majeure or catastrophic risk, of an unpredictable or inevitable nature”, however, the magistrate of the Social Court of Huesca, Eduardo José Bernués, stresses that “the defendant does not prove having acted with due diligence to protect health professionals from the serious risk derived from the coronavirus” and recalls that since January the WHO had warned about the consequences of the virus.

Condemn the instructions to reuse the material

Given the lack of protection, the Basque Health Service distributed among its professionals “instructions for use, reuse and washing” of masks and gowns, a decision condemned by the magistrates, who recall that these protocols “ignored the recommendations for use indicated by the manufacturers who warned of the potential risk of infections for the patient and for the user that led to its reuse or inappropriate use. ” Given these instructions and the lack of material, the Social Chamber of the Superior Court of Justice of the Basque Country condemns the administration “to take the appropriate measures for the protection of the personnel at its service.”


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