The Constitutional Court is scheduled to deliberate this week on the amparo claim that will respond for the first time to an amparo appeal filed by an anti-vaccination agent during the Covid-19 pandemic. The ruling proposes to dismiss the lawsuit filed by the legal representative of an elderly woman who suffered from Alzheimer's and 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.
The appellant alleged that his 85-year-old mother had survived four previous waves of the pandemic without the need for any vaccine, for which reason he argued that it made no sense to provide her with the aforementioned medication on those dates. He maintained that the forced administration of the drug was also not justified from an epidemiological point of view. On his part, from the nursing home it had been reported that this circumstance forced the center to proceed to a sectorization to avoid contact between vaccinated and unvaccinated people.
In fact, there came a time when the elderly 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. She could not share a room with other people nor could she eat with other colleagues, "being practically isolated due to compliance with such social distancing rules, which has negatively affected her," according to the doctors at the Las Palmas residence.
In November, the Court of First Instance Number 2 of Telde authorized the vaccination of the octogenarian, admitting that, although there is no legal obligation to be vaccinated in current legislation and that the arguments offered by the guardian were "understandable and legitimate", they should decline in the face of the safe nature of the Covid-19 vaccine, which had the approval of the European Medicines Agency, being in any case "the risk of contracting coronavirus infection greater and more serious than that of suffering any serious side effect" . In addition, the court valued the forensic doctor's report where it was considered that the proposed vaccine was not contraindicated with the elderly woman's state of health. Subsequently, the Provincial Court of Las Palmas de Gran Canaria confirmed this criterion and, when the elderly woman was vaccinated, her son appealed to the Constitutional Court.
The draft sentence that will be debated by the Plenary, a presentation by magistrate Juan Carlos Campo, to which EL MUNDO has had access, maintains that "there is no doubt that there are cases in which the fundamental right to personal integrity and the right to privacy may be concurrently violated." Campo explains that "collective interest" prevails when it comes to favoring mass vaccination understood as a preventive and effective tool in a serious epidemic context, "because an effective collective immunization policy can lead, and has historically happened, to the eradication of infectious-contagious diseases through the so-called herd immunity».
Likewise, the text emphasizes that "we must not forget that this aspect of health policy has undoubtedly constitutional roots, since article 43.2 of the Constitution requires public authorities to protect public health through preventive measures." The presentation also recalls that the Law on Patient Autonomy, in its article 9.6, provides that "in cases in which the consent has to be granted by the legal representative or persons linked for family reasons (...) the decision must be taken always attending to the greatest benefit for the life or health of the patient.
The magistrate considers that we are dealing with a "strictly protective" measure, which can be adopted by the judicial authority with the sole legitimate purpose of protecting the person who is prevented or unable to give consent in a context of risk to their health. . The paper considers that in this case an adequate and proportionate weighting of the interest of the vulnerable person was carried out and, consequently, it proposes to dismiss the amparo appeal.
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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