20/08/2021

The courts and control of the pandemic, a permanent clash

2 min
Crowding in Barcelona's Plaza del Sol, after curfew

It has been a constant since the beginning of the pandemic a year and a half ago, but there has been no way to solve it. For one reason or another, it is common for part of the restrictions to contain the pandemic to clash with the justice system, which, depending on how it interprets the law, admits or rejects the proposals of the different administrations. There are cases that perhaps seem to be an overreach by judges, such as the judge in Castellón who has forced a public hospital to give an alternative treatment which has been authorised by the health service to a patient with covid-19. This is a very dangerous precedent because it opens the door to the possibility of patients or families trying to force treatments à la carte against medical criteria, which has rightly provoked the indignation of all the medical associations and the administration. This case will be appealed and it would be desirable, for the good of the public health system, that the decision is reversed. But the most common has been that the rulings were the result of the lack of legal basis to justify the government's decision.

When the confinement and the general curfew came into force, it became clear that a legal cover was needed to allow such drastic measures of deprivation of liberty. The tools used by the Spanish government were also a source of controversy and debate among jurists and politicians, but at least there was a decree endorsed by Congress authorising the measures. Afterwards, although the opposition called for some kind of clear legislative framework, the Spanish government considered that the current legislation already allows the necessary restrictions and has left the control of the worst pandemic of the century in the hands of the regions, and above all the judges. Do judges know about epidemiology? Evidently not. But in the end they are the ones who have to decide, with the law in hand, whether the cuts in rights demanded by the different administrations are sufficiently justified.

The law is subject to interpretation, and that is why we have seen that measures have varied from across the state. Each court has acted according to what it has considered based on its interpretation of the law, case law and the evidence passed on by the administrations. The public, however, is surprised and outraged almost always by the prominence of judges in a public health case in which their decisions can cost lives, and also by the lack of skill with which the administration often justifies the measures. It is regrettable that there has been no political or technical agreement in all this time. There has been a lack of clear parameters to avoid these different judicial interpretations, because those that existed have been modified. The decision this Wednesday by Catalonia's High Court to throw out the curfew - with still almost 500 patients in ICU and more than twenty daily deaths - is justified by what it considers an unexplained change in criteria by the Health Department. The problem is that the law is slow but the twists and turns of the pandemic are very fast. So far we have not been able to get ahead, and with this system it is possible that we will never get ahead. At the end of September we will see.

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