The national health bases law of 1944 and organic law 3/1986 on special measures for public health provide coverage for a possible mandatory vaccination of the covid-19, although some lawyers call for the introduction of new instruments to make compliance more effective.
The provisions approved in the last century in Spain for diphtheria and smallpox, including the possibility of declaring the vaccine mandatory, facilitates the legal path so that in your case, vaccination could be compelled, a measure that, although it conforms to the law, is not the most popular among the medical community due to the “counterproductive” effect that it could have.
But where does it specifically say that getting vaccinated has to be mandatory?
The lawyer expert in health issues and professor at the Open University of Catalonia (UOC) José Enrique Pérez Palaci has explained to Efe that to begin with, they provide for the right to life and physical integrity and the protection of health both in the Universal Declaration of Human Rights, as the European Convention on Human Rights and the constitution of the World Health Organization (WHO).
In Spain, the first title of the Constitution includes the right to life and physical integrity (Article 15) and Article 43 states that it is the responsibility of the public powers to organize and protect public health through preventive measures and the necessary benefits and services.
Further, in law 22/1980, which modifies the 1944 law on health bases, it is specifically provided that Vaccines against smallpox, diphtheria and other infections may be declared mandatory by the Government.
“Vaccinations against smallpox and diphtheria and against typhic and paratyphic infections may be declared mandatory by the Government when, due to the existence of repetitive cases of these diseases or the epidemic state of the moment or foreseeable, it is deemed appropriate”, says that precept in your unique item.
There is also a Decree of 1945 that approved the regulations for the fight against infectious diseases that in its article 21 it declares that vaccinations against diphtheria and smallpox may be compulsory for all Spanish citizens, “being sanctioned their failure to carry out.
For lawyers like Pérez Palaci, “by analogy” the vaccine for the COVID-19 pandemic could also be declared mandatory.
Although the 2002 law on patient autonomy indicates that the affected person can accept or reject some therapies, that right to decide has some exceptions, mainly the risk to public health.
This risk is developed in organic law 3/1986, which in its article 2 declares the possibility of the authorities taking any necessary measure to preserve public health.
For the jurist, the issue of compulsory vaccination is, finally, the collision of two rights, the right to health protection, which prevails in the event of a pandemic such as covid-19, and the right to intimacy and privacy.
“Now, if the existing regulations can cause some confusion, also the executive and the legislature can intervene in this regard and modify it by introducing relevant articles both in the penal code and in a new organic law or the modification of the general public health law, “he said.
For the professor of Constitutional Law at the University of Barcelona (UB) Mar Aguilera, “rather than declaring it mandatory in the law, it will be key to establish what the consequences of non-vaccination are.”
In conversation with Efe, Aguilera said that “It is important to make clear what the consequences are and that these are proportional“, precepts that would have to foresee and assess multiple cases such as” what happens if parents continue to bring their child to school without vaccinating covid-19? “.
From the medical world, however, they insist that it is not the most appropriate thing to declare the vaccine mandatory “because it could have counterproductive effects,” Magda Campins, the head of epidemiology at the Barcelona Vall d’Hebron hospital, explained to Efe.
“If you force people, they can be more reticent. We hope to reach high vaccination coverage of the population without having to reach the obligation “, said the doctor.
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