Misc 13/01/2021

Court forces incapacitated woman to get vaccinated despite daughter's refusal

Judge claims that she avoids a higher risk if vaccinated than if exposed to the contagion

Ot Serra
2 min
La Milagros Garcia, la primera persona vacunada del covid-19 a la demarcació de Lleida, durant la vacunació a la residència Balafia I, el 27 de desembre del 2020.

MadridA judge in Santiago de Compostela decided on Saturday that an incapacitated woman had to be vaccinated despite the fact that her daughter, as legal guardian, had opposed it. The newspaper El País has advanced the first case in which the justice system has taken a position on the obligatory vaccination against coronavirus, which the authorities had made clear was a voluntary option. The residence where she lives, DomusVi San Lázaro, took the issue to court after no other resident expressed reluctance to getting vaccinated.

The daughter had argued that she preferred to wait to see if there were any side effects, but the forensic study of the woman's legal incapacity referred to the safety of the Pfizer/BioNTech vaccine. In the court ruling, to which Efe has had access, the judge makes the decision after weighing up the risks and concludes that the woman must receive the vaccine. She was scheduled to receive it on Sunday, but there has finally been a delay and it has not yet been administered.

"Getting vaccinated and not doing so both carry a risk that you have to take, because there are no intermediate options. In this situation, the question comes down to a pure assessment of what the highest risk is," the judge wrote, after the 84-year-old woman's daughter argued that it was too great a responsibility to have to make the decision on behalf of a third party. "The risk undoubtedly increases as the administration of the vaccine is delayed and the number of infections increases because, in the same progression, the possibility of contracting the disease is foreseeable," resolves Javier Fraga.

The power of the legal guardian, the key

If vaccination is not mandatory, how come the judge only focuses on health risks? This is the heart of the debate, and the answer can be found in Law 26/2015, which modified the child protection system and also amended the law on patient autonomy. In cases of immunisation, when the decision is not made by the person directly affected but by the legal representative or persons linked by family reasons, "it must always be taken with the maximum benefit for the life or health of the patient in mind, and if not, it must be brought to the attention of the judicial authority," the law says.

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