Vaccination obligation and penal shield for doctors: a Pyrrhic victory and many questions
The intervention of the lawyer Vania Cirese, head of the Acoi legal office (Association of Italian hospital surgeons)
The Dpcm Draghi will be presented to the Chambers for conversion into law. The text does not leave us calm. The articles that concern health professionals are art. 3 and Article 4.
Art. 3 (health responsibility and administration of the anti Sars COV2 vaccine)
1. For the facts referred to in articles 589 and 590 of the criminal code which occurred due to the administration of a vaccine for the prevention of Sars-CoV -2 infections , carried out during the extraordinary vaccination campaign in implementation of the Plan referred to in Article 1, paragraph 457, of Law No. 178 of 30 December 2020, punishment is excluded when the use of the vaccine complies with the indications contained in the marketing authorization provision issued by the competent authorities and the circulars published on the site institution of the Ministry of Health relating to vaccination activities. "
The need for a protective "criminal shield" for vaccinators was invoked and justified following the investigation into the death of a Sicilian who died a few hours after the administration of the vaccine. The person who made the injection was also entered in the register of suspects. Associations and professional associations have asked for a "criminal shield" to protect vaccinators following other cases, in Trapani, Naples and Biella even if the autopsy examination has ruled out the existence of a causal link.
To the spontaneous and legitimate question, who will rule that punishment is excluded can only be answered: the magistrate.
The objective to be achieved appears to have been lost from the start, if the provision was to exclude that doctors were subjected to criminal proceedings, well they will still be because a (criminal) investigation will be needed to collect elements and sources of evidence if the use of vaccine has been compliant or not with the indications and then even if the PM asks for an archiving, a judge's ruling will always be required to exclude the punishment which the offended person can also oppose. In short, the health workers will have to defend themselves in a new dispute and what has already happened in Biella, Naples and Trapani will happen. Furthermore, this will not prevent the civil and accounting courts from being taken, ie the other fronts remain open.
Who suggested this solution? It really seems a useless provision and that does not bring any real protection to the right to health. We cannot agree with those who assert that this penal shield will give peace of mind to health professionals. It seems appropriate to follow the path indicated by Acoi which concerned not only vaccinations but all professional services rendered in times of pandemic emergency. Perhaps we can still try to introduce real protection.
Trials against doctors may well be paralyzed by a universal justification that completely prevents compensation and reimbursement not only in criminal but also in civil and administrative matters.
The effective will to protect doctors and health professionals who, in addition to deserving it for their strenuous work and sacrifice, have also been damaged (infected and dead), leads to consider a simple solution by resorting to a cause of justification already present in the criminal code which is effective in the other branches of law (civil, administrative, Court of Auditors), eliminating the unlawful nature of the conduct and making it lawful.
In constancy of a lawful conduct, no criminal or civil case at the Court of Auditors can be brought against doctors and health professionals. So it would be enough to simply write: "during the Coronavirus epidemiological emergency the work services and treatments provided by medical and health personnel in public, affiliated and private facilities are rendered in the fulfillment of duty and in a state of need".
The causes of exclusion of the crime, such as the fulfillment of duty and the state of necessity, are strictly identified by the law and exclude the unlawfulness of a conduct which, in their absence, would be criminally relevant and punishable.
In the presence of such circumstances, in fact, a conduct (otherwise punishable by law), becomes lawful and this as a rule or an order of the public authority, inferable from the entire legal system, admits and / or imposes it.
The causes of justification can be deduced from the entire legal system and, therefore, their effectiveness is not limited to criminal law alone but extends to all branches of law (civil and administrative).
Art. 4 urgent provisions on the prevention of Sars CoV-2 contagion by providing for vaccination obligations for health professions and health professionals.
It is mandatory to undergo vaccination for health professions (except documented danger to health certified by the general practitioner).
When the vaccination information systems do not indicate that vaccination has been carried out, after formal invitations to the interested party and reporting to the Council of the Order to which they belong, the right to perform services or tasks involving interpersonal contacts follows.
The employer can assign the professional to other tasks, even lesser ones and when this is not possible for the entire period of suspension, the professional will not be paid until he fulfills the vaccination burden.
Not contesting in any case the usefulness of the vaccine in relation to its mandatory nature, one wonders about the constitutional legitimacy of this provision as it seems evident the contrast with the law 219/2017 which provides for the right to refuse treatments and the right to accept them with prior informed consent. , law 413/93 which provides for conscientious objection linked to animal experimentation, the Nuremberg code of medical ethics, given that the current vaccination platforms are being tested.
The assignment to tasks not in contact with patients is understandable even though it must be taken into account that the vaccine protects the vaccinated (which can avoid contagion or become infected in a milder form) but does not guarantee that the vaccinated does not infect others. However, it cannot be agreed on the suspension of pay until the professional is vaccinated. Such conduct could indeed integrate extremes of unlawfulness and the fulfillment of an illegitimate order does not discriminate.
It does not seem appropriate or legitimate to limit the exercise of freedom of choice, by imposing constraints or other types of coercion or restriction of self-determination, it seems appropriate to respect individual freedom and always acquire consent.
The Dpcm provides for the transmission of the list of members to the region or autonomous province for the verification of the vaccination status, informing the ASL who has yet to receive the administration. This is sensitive data pursuant to Legislative Decree 51/2018 in implementation of the European Directive 680/2016. The processing of data without the consent of the interested party is only possible in criminal matters for safety reasons (not health). Outside public order and criminal matters, the processing is unlawful and sanctioned (articles 41, 42 and 43 of Legislative Decree 51/2018).
It is worth remembering that on January 27, 2021, the permanent assembly of the Council of Europe voted resolution 2361 which prohibits the compulsory vaccination against COVID19.
Other reflections and questions arise: is it possible by law to establish a sanctioned legal obligation for only one category of citizens? Is it legitimate to demotion the professional who does not vaccinate or even deprive him of his salary until he is vaccinated? The Constitution, the general principles of our system, criminal law and the right to work will give us the answers. The ACOI with its CT and legal team will explore the issues further.
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/sanita/obbligo-vaccinale-e-scudo-penale-per-i-medici-una-vittoria-di-pirro-e-tanti-interrogativi/ on Sat, 12 Jun 2021 05:37:14 +0000.