Vaccination against COVID-19 it is voluntary. This was established by the health authorities from the beginning of the campaign in the last days of 2020. But the vaccination of people who do not decide on their own health has become a legal problem: children or disabled or sick people who cannot take the decision for themselves. The Constitutional Court has decided to admit two appeals –the first of a longer list– of people who question whether a judge can compel a child or an incapacitated elderly person to be vaccinated. One of these cases, as elDiario.es has learned, comes from the Canary Islands and is the appeal of the son of a woman with Alzheimer's disease against the decision of a court to vaccinate her mother against her criteria.
The case that the Constitutional Court will study was born in a nursing home in the Canarian town of Ingenio. There, a Telde judge authorized the center to vaccinate an 85-year-old woman with Alzheimer's disease, a woman who, according to Justice, "cannot give valid consent or understand what is most beneficial for her health" due to the progress of her illness. The judge authorized the inoculation of the vaccine in all its doses, but against the criteria of the woman's son.
This first decision of the Telde court was made in November 2021, when the vaccination campaign It had been running for almost a year, and the Provincial Court of Las Palmas ratified the compulsory vaccination for this woman in April of this year. The judges of the Canarian court understood that, in this case, it was appropriate to judicially authorize the residence to vaccinate the woman to preserve her health in the face of the risk of contagion by coronavirus, with a higher mortality rate among the elderly .
That will be one of the cases that the Constitutional Court will study to establish its jurisprudence on this matter: if a judge can force a child or a person under guardianship to be vaccinated against the discretion of the guardian. The magistrates understand that the answer they give to this case will affect many others – for example, the rest of the appeals awaiting a response in the court registry – and that it affects a whole bunch of fundamental rights: the principle of equality, integrity physical and moral, the protection of health and personal privacy.
This woman's son understands that compulsory vaccination by judicial decision, being "a drug in the experimental phase", must be "always" voluntary. Some allegations that, for now, have not been successful before the judges of the Canary Islands. Last April, the Court of Las Palmas rejected her appeal taking into account several factors: the medical reports of the case do not contraindicate vaccination, the woman is at high risk due to her age and her stay in a nursing home and, finally, the notoriety of the "high rates of infection and mortality" of the coronavirus among the older population.
This resolution, now in the hands of the Constitutional Court, explained the framework of the debate: the Patient Autonomy Law of 2002 and, in the case of minors, the Minor Protection Law of 1996. These regulations establish when consent doctor must be given by representation in another person, one of them that the patient has the capacity modified judicially. And it always has to be done, according to the Law, "in favor of the patient and with respect for her personal dignity."
The judges of the Court of Las Palmas analyzed the case of this octogenarian and concluded that it was appropriate to judicially authorize her vaccination. "The administration of the vaccine represents an undeniable benefit, much greater than the risks" of not being vaccinated, the judges said. They also rejected that the speed of the process to create the vaccines has made it potentially unsafe for the population. "They are authorized by the Spanish and European Medicines agencies, in addition to being subject to continuous monitoring, which allows us to assume that they have been prepared with the maximum guarantees of quality, safety and efficacy," he reasons.
In this case, the woman's son alleged, among other things, that the vaccine is not 100% safe and is in the experimental phase, that the possible adverse effects have not been determined either, that there are "alternative medications". These arguments, says the Court of Las Palmas, "could have some discussion in the initial phase of vaccination" but understands that they are arguments that "are now widely outdated and lack any foundation."
According to sources from the court of guarantees, this case from the Canary Islands and another from Aragon will be the first to be studied by the full Constitutional Court, but it is not the only one that has been presented by people who oppose a judge being able to decree inoculation of the COVID-19 vaccine in children or people with the capacity modified by sentence. In this case, a woman with Alzheimer's.
In the last two years, courts and tribunals throughout the country have studied cases of guardians opposed to the vaccination of the people they protect: children of disabled elderly people but also, for example, cases of separated parents in which one opts to vaccinate the minor children and the other for not doing it.
Last May, for example, the Provincial Court of Valencia studied one of these cases. The judges left in the hands of the father of a minor the decision to vaccinate him from the coronavirus after the mother had an opinion, say the judges, less in "tune" with the child, who suffered from various ailments but had expressed his decision to want to get vaccinated In addition to establishing that the final decision remained in the hands of the father, as he was favorable to vaccination, the judges also said that in these cases of controversy and violation of rights, "those of the minor child should prevail over those of their parents ".
A month earlier, in April of this year, the Madrid courts studied the case of a woman who requested judicial authorization to vaccinate her eight-year-old daughter while her father objected "because he was unaware of the side effects." A court in the town of Torrejón de Ardoz, one of the hardest hit by the pandemic during the first phases of its expansion in the region, understood that "there is still much to know about this disease" and that "there is no knowledge of the effects that these vaccines can produce". That court understood that the vaccination of the eight-year-old girl was not justified and left the decision in the hands of her father, contrary to vaccination, since "there is no clear knowledge of the side effects that vaccination may have in the long term" .