It is true that throughout this pandemic, and specifically in each of the so-called waves, there are many ethical-legal dilemmas that arise. Let us remember that we went from prioritizing vaccination and Who do we vaccinate first? to another increasingly recurring dilemma. More if possible with the new delta variant. We are talking about the compulsory nature of vaccination and, more specifically, in the workplace. Should vaccination be required in the workplace?
The obligation of the Covid vaccine extends in Europe and the United States. But the truth is that the situation in Spain is not the same as that of other neighboring countries. Spain has always had and has high vaccination rates, which is why compulsory vaccination does not seem to be a real need in Spain at present.
Although it is not currently a necessity, what must be assessed is whether it could be justified. Forced vaccination is not the same as compulsory vaccination.
In forced vaccination, the individual who disregards the obligation may be legally obliged to be vaccinated even by resorting to the force of authority. While, in compulsory vaccination, in the case of non-compliance, the individual will have a legal consequence that can range from a fine or the limitation of some right to, as in the case of France, reaching the suspension of employment and salary.
The difference is substantial. Forced vaccination affects the right to the integrity of the individual. However, compulsory vaccination implies a limitation of rights.
However, one must start from the awareness that no right is absolute. All rights are limited. Either for the rights of third parties or for constitutional values of general interest, such as public health. Consequently, mandatory vaccination seems fully justified if necessary.
Our Constitution guarantees the right of citizens to the protection of health and life and physical integrity. But is it a right-duty? In other words, is it mandatory to protect one’s health, life and physical integrity by its owner? The answer today is no. In our legal framework, this refusal is based on respect for the autonomy of the will and the validity of ideological freedom and belief within that.
Law 41/2002 unequivocally and repeatedly recognizes the principle of autonomy of the will. In this sense, article 2 e. proclaims the right to accept or refuse medical therapies or procedures. This same autonomist criterion is respected by Law 33/2011, in which unfortunately a great opportunity to regulate, rather than impose coercively, specific obligations for certain professions was lost. Thus, the general duty of vaccination could have been considered over voluntarism, with the exceptions that might be applicable.
In the current circumstances, it is not necessary to look for legal instruments to make vaccination mandatory
But also our regulations (Organic Law 3/1986, on Special Measures in Public Health Matters) declares the possibility of public authorities to take any type of measures to preserve public health when it is in danger. Particularly (he said) in case of epidemic or extreme situations.
Vaccine indications are, therefore, health recommendations. And, as such, freely accepted, except in specific cases of epidemics or serious risk to public health. In this sense, the need for mandatory vaccination It will have its justification in the dangerousness of the sanitary situation and the biological risk to be assumed.
Take the example of the health professions: what happens if the toilet, for whatever reason, is contaminated, particularly with certain viral infections? What is your responsibility to patients?
In the event that a patient is harmed by his refusal to be vaccinated, there will be an assumption of responsibility, in this case of the Health Administration, which must compensate for the damages caused to the patient. Without prejudice to the fact that later that Administration itself could affect the collection or payment of the compensation on that person who, in its case, could have caused the damage.
Tensions between the rights of individuals and the desire to protect public health must be avoided and for this It is very important that the Health Administration knows how to inform and explain the benefits of vaccination for all. In short, a principle of compulsory vaccination must prevail over the existing voluntarism, in which of course the pertinent exceptions could be considered.
Furthermore, in the current circumstances, it is not necessary to seek legal instruments to make this vaccination mandatory, based on the content of article 43 of the constitutional text on health protection, which has a double dimension. Not only individual but also collective, which corresponds to the public powers through preventive measures, specific benefits and services necessary for its preservation.
*** Ofelia de Lorenzo is vice president of the Spanish Association of Health Law (AEDS).
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