3 min.
The Constitutional Court (TC) has endorsed unanimously that a judge authorizes the vaccination of a minor against COVID-19 in case the parents disagree. The magistrates have rejected the appeal for protection that the mother of an 11-year-old girl had filed against the judicial resolutions that authorized the minor to be vaccinated.
Thus, the Plenary has applied the doctrine initiated by the TC itself last April by considering that, although vaccination directly affects the fundamental right to the physical integrity of the minor, the judicial decisions that authorize it have been issued with full respect for constitutional guarantees.
According to the court of guarantees, on this occasion the court has studied a case in which there was a “disagreement” between the parents of the minor when deciding on vaccination. The mother was opposed considering that it was a modality of gene therapy that was still in the experimental phase and could cause serious adverse effects. The father, for his part, went to court.
Greater benefits than risks
The court approved the vaccination and was supported by the reports and recommendations of accredited public health organizations – Spanish and European Medicines and Health Products Agencies, Interterritorial Health Council, Spanish Association of Pediatrics and Center for Control and Disease Prevention – which supported the fact that the vaccine involved greater benefits than risks at an individual level, also for the age group of the litigants’ daughter.
Now, the Constitutional Court has spoken, dismissing the mother’s appeal considering that the judicial authorization of vaccination found legal support in Law 41/2002, basic for patient autonomy.
The norm, when regulating informed consent to health actions, provides for the possibility that this consent is given by those who represent the person minor who lacks the intellectual or emotional capacity necessary to understand the scope of the intervention.
The 11-year-old girl could not decide
In the case analyzed, the two parents assumed from the beginning that their daughter lacked the necessary maturity to decide for herself about vaccination, and that, consequently, it corresponded to themas holders of family authority, make the decision.
This assumption, accepted by the ordinary courts, could not be considered unjustified according to the TC, given that the decision required carrying out a complex weighing of risks and benefits of vaccination, which, in turn, required the ability to understand and critically judge competing medical-scientific documents that used remarkably sophisticated and intricate technical arguments typical of medicine, pharmacology and applied statistics.
The TC has considered that it could reasonably be inferred that a minors under 11 years of age should not have the capacity intellectual capacity or the necessary elements of judgment to issue informed consent on its own. The intervention of the courts became necessary from the moment the disagreement occurred between the holders of family authority, in accordance with the Foral Civil Code of Aragon.
In the ruling, for which Vice President Inmaculada Montalbán was the speaker, the court has endorsed that the judicial decisions adopted in the specific case adequately and sufficiently justified the decision to authorize the vaccination of the minor as a means to effectively protect her best interests.
2023-11-07 11:00:00
#supports #vaccination #minor #COVID19 #RTVE
