A few days ago the resolution issued by a Court of Santiago de Compostela came to light, which decreed the mandatory vaccination against covid-19 of a resident unable to decide for herself. She counted on the opposition of her daughter, a reference contact.
Similar cases have already transpired in other geriatric hospitals in Spain, Seville and, again, Santiago de Compostela with the same outcome. More cases like these may occur in vulnerable groups that do not have sufficient capacity and whose legal representatives reject immunization.
Among them we could find people with disabilities (highly dependent or not), older people (among others, those aged 80 and over, the next priority group, given that their immunization would be 43% more effective than that of the rest of the adult groups) or, when the time comes, underage minors under 16 years of age.
For the moment, the Prosecutor’s Office has already expressed its favorable position to inoculate incapacitated users. For this purpose, it has provided a form to the centers themselves, a process that may lead to the removal of guardianship or its exclusive attribution to another party.
This fact, together with the voluntary nature of the vaccine, has led to questioning who is responsible for this decision: the patient, his legal guardian or the judicial authority? Is it ethical that, given the impossibility of obtaining the informed consent of the interested party, the criteria expressed by the family member or person designated to act on their behalf are not met?
What does the law say?
Once they have reached the age of eighteen, citizens can, regardless of their age, choose not to be vaccinated. To do this, they must fully retain the ability to exercise the rights and obligations of which they are holders. This is called the capacity to act (art. 322 Civil Code).
Therefore, its deployment (or, where appropriate, deprivation) depends on the cognitive and functional situation in which each subject finds himself. This differs from legal capacity (which coincides with personality and is acquired with birth and once the detachment of the mother’s womb has occurred (art. 30 Civil Code).
Thus, when a person cannot govern himself, either because the physician has so stated in his report, or because there is an incapacitation sentence handed down by a judge (arts. 199-201 Civil Code), it must be substituted in his legal acts by a third party.
However, the scope of this power by that third person is not unlimited or absolute. This is how art. 216 of the Civil Code when it says that “Guardianship functions (…) will be exercised for the benefit of the ward and will be under the safeguard of the judicial authority.”
More precisely, art. 9.6 of Law 41/2002, of November 14, basic regulating the autonomy of the patient and rights and obligations regarding information and clinical documentation, establishes that, when consent is granted by the representative or person related to the family or of In fact, “(…) the decision must be made always taking into account the greatest benefit for the life or health of the patient”. That is, the decision may not deviate from what, according to the scientific evidence available at all times and the medical history of the incapacitated person, is objectively better to preserve their life or health.
If the opposite occurs, this law requires that the situation be brought to the attention of the competent judge, directly (who has a legitimate interest, in this case, at the request of the residence) or ex officio (through the Public Prosecutor’s Office) so that, in view of the forensic medical report, it is resolved.
It even contemplates that in the event that it is impossible to obtain judicial authorization in a timely manner, the health professional may vaccinate for urgent reasons, when being under a state of need or acting in the fulfillment of a duty (arts. 20.5 and 20.7 Penal Code).
In the same sense, it is regulated by art. 6.1.d of Law 3/2001, of May 28, regulating informed consent and the medical history of patients, stating that “In the event that the decision of the legal representative is contrary to the interests of the minor or disabled , the facts must be brought to the attention of the competent authority by virtue of the provisions of the civil legislation ”.
Is this limitation ethically acceptable?
At the same time, it is necessary to examine whether the decision of the Court in question is adjusted not only to the laws, but to the standards of ethics. This being a conflict of interest, the arguments put forward by the parties must be considered for consideration.
On the one hand, it has been reported that the patient’s daughter alluded to the degree of responsibility involved in making a decision of this magnitude unilaterally. In addition, he stated that it seemed more prudent for him not to vaccinate his mother in order to avoid possible adverse effects derived from it. At no time did he refer to any contraindication or previous pathology suffered by his mother and that, depending on its severity, could have come to reinforce his position, in this case, against vaccination.
On the other hand, it must be taken into account that the vaccine obtained a positive evaluation from the European Medicines Agency and that, likewise, the World Health Organization validated its safety and efficacy.
Along with the above, it should be noted that, only in the first wave, almost half of the deaths in our country occurred in nursing homes.
These data reflect the risk that this person could contract covid-19 with even more burdensome consequences, as endorsed by the data of the provincial prosecutors when quantifying the excess mortality in residences between 6% and 8%.
In addition, the decision does not affect only their life or health, but that of the rest of the residents. Therefore, their consent could even be dispensed with for public health reasons (art. 9.2.a, of the Patient Autonomy Law).
Therefore, it seems reasonable that vaccination can better respond to the basic bioethical principles of beneficence and non-maleficence, since it not only pretends not to do harm, but the potential benefit is much higher, especially when the side effects reported to date are minima.
Ekain Payán Ellacuria , FPI Researcher at the University of the Basque Country UPV / EHU and Assistant Professor of Criminal Law, University of the Basque Country / Euskal Herriko Unibertsitatea
This article was originally published on The Conversation. Read the original.
