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Legal context on the voluntary or compulsory nature of vaccination in Spain

| News | Employment Law and Social Security

Alfredo Aspra, Puy Abril and José María Gallego explain in El Economista that "vaccination in Spain is framed within the principle of patient voluntariness" however "health authorities could impose vaccination as a compulsory preventive treatment"

As a premise, we must start from a general principle, which is that vaccination in Spain, like any other medical or surgical treatment, is governed by the principle of informed consent. In other words, no vaccination or treatment will be compulsory or forced on the patient; on the contrary, it will require the patient's prior consent and voluntariness. The inoculation of any vaccine would require the patient's prior authorisation. This is deduced from article 2.2 of Law 41/2002, of 14th November, the basic law regulating patient autonomy and rights and obligations regarding clinical information and documentation ("Law 41/2002"), the literal wording of which states: "2. Any action in the field of healthcare generally requires the prior consent of patients or users. Consent, which must be obtained after the patient has received adequate information, shall be given in writing in the cases provided for by law".

However, this general rule of voluntariness and prior consent of the patient is subject to exceptions that the legislator has expressly included in two regulations. Firstly, Article 12 of Organic Law 4/1981, of 1st June 1981, on states of alarm, exception and siege ("LO 4/1981"). In this sense, article 4 of LO 4/1981 covers situations such as catastrophes, calamities or public misfortunes, such as earthquakes, floods, urban fires and health crises.

In addition, Organic Law 3/1986 of 14th April 1986 on Special Public Health Measures ("LO 3/1986") establishes that the competent health authorities may adopt measures of recognition, treatment, hospitalisation or control when there are rational indications that suggest the existence of danger to the health of the population due to the specific health situation of a person or group of persons or due to the sanitary conditions in which an activity is carried out".

Thus, health authorities could impose vaccination as a compulsory preventive treatment for certain groups of the population, based on issues that make it possible to assume the existence of a danger to the health of the population. The existence of such superior reasons would not be a novelty in our country, as we have a history of health authorities being obliged to impose a specific vaccination or treatment on certain groups.

In this regard, it is worth noting the fourth basis of the Law of 25th November 1944, on the Bases of National Health, amended by Law 22/1980, of 24th April, amending basis IV - still in force - which states that "vaccinations against smallpox and diphtheria and against typhoid and paratyphoid infections may be declared compulsory by the Government when, due to the existence of repeated cases of these diseases or to the current or foreseeable epidemic state, it is deemed appropriate. In all other infections in which there are means of vaccination of recognised total or partial efficacy and where such efficacy does not constitute a danger, they may be recommended and, where necessary, imposed by the health authorities".

By way of illustration, it is worth highlighting the rulings of the Administrative Courts No. 5 of Granada (of 24th November 2010, Proc. 918/2010) and No. 2 of Ourense (of 14th June 2019, Proc. 155/2019), which consider that the administrative powers that justify these measures of deprivation or restriction of liberty or other fundamental right of citizens are legitimised in art. 43 of the Constitution and that there is proportionality of the measure so that it is suitable and necessary.

What is certain is that, to date, and without prejudice to the fact that the Government may modify its criteria maintained to date for health reasons, the inoculation of the vaccine developed by Pfizer/BioNTech will be voluntary for all citizens. It must also be remembered that the obligations in terms of occupational risk prevention are based on the structural principle of risk avoidance. The business obligation described above (guaranteeing the health and safety of employees by avoiding risk and assessing those that cannot be avoided) is a constant duty that has not found exceptions in exceptional situations such as the one we are currently experiencing.

Vaccination in Spain is framed within the principle of voluntariness and patient autonomy, whereby the injection of any vaccine or treatment requires the prior consent and express acceptance of the patient. Nevertheless, this principle of willingness finds its exception in those circumstances in which, due to its seriousness, with the aim of preserving and safeguarding the health of citizens, the competent Health Authority authorises the compulsory vaccination of a specific group of the population. This power has already been exercised in the past, citing, by way of illustration, infectious situations of tuberculosis or measles as triggers for administrative orders - judicially ratified - for compulsory vaccination.

For the development, organisation and orderly inoculation of the doses provided by the pharmaceutical company, the Interterritorial Council of the National Health System published on 18th December 2020 the document "Strategy for vaccination against Covid-19 in Spain". In accordance with the provisions of the document, the vaccine will be voluntary, and a register will be created of all those who refuse to be inoculated with the vaccine. It will also be provided to the corresponding population groups in turn.

The article can be read in El Economista.

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