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The Constitutional Court confirms mandatory COVID vaccination in the public sector.
[/vc_column_text][us_separator][vc_column_text]Our High Constitutional Court unanimously ruled, through judgment 2021-23195, that vaccination against SARS-COV-2 is mandatory when so established. This resolution originates within the framework of an Appeal for Protection filed by rejecting the arguments of the appellant that: a.- she alleged violation of her privacy, freedom of choice and decision; b.- furthermore, that it could not be mandatory without the signing of an "informed consent"; c.- that the vaccine is "experimental"; d.- that "there is no law" that requires vaccination and e.- that her right to "conscientious objection" was respected. As a starting point, the magistrates rejected that the COVID-19 vaccines applied in the country are "experimental phase drugs." The Constitutional Court continues by stating the regulatory framework that provides for mandatory vaccination, for example, – the Civil Code in article 46 which states: “…Any person may refuse to undergo a medical or surgical examination or treatment, except in cases of mandatory vaccination or other measures relating to public health, occupational safety and the cases provided for in article 98 of the Family Code (…)”. article 345 paragraph 3 of the General Health Law, in relation to the powers of the Minister of Health and article 147 referring to the obligation of every person to comply with that law: Art. 345 paragraph 3) Declare mandatory vaccination against certain diseases, as well as certain examinations or practices deemed necessary to prevent or control diseases. Art. 147: Every person must comply with the legal or regulatory provisions and practices intended to prevent the emergence and spread of communicable diseases. It is specifically obligated to comply with: (…) b) The preventive measures ordered by the health authority when a disease occurs.” For the Court, vaccination is precisely a preventive measure to avoid the spread of a communicable disease. Article 3 of the National Vaccination Law states: In accordance with this Law, vaccinations against diseases are mandatory when deemed necessary by the National Vaccination and Epidemiology Commission, created by this Law, in coordination with the Ministry of Health and the Costa Rican Social Security Fund. (…) The National Vaccination and Epidemiology Commission must prepare an official list of vaccines, which will be included in the Regulations of this Law. The list may be reviewed and analyzed periodically, taking into account frequent technological changes in this field (…). Finally, Article 6 of the same law recognizes the function and objective of the Vaccination and Epidemiology Commission: To guarantee the mandatory and free nature of vaccines and effective access to them for the entire population (…) English: Formulate the general political and strategic guidelines on vaccination, applicable to the health sector (…) Define, jointly with the country's health sector authorities, the schedules and vaccines referred to in Article 3 of this Law." For all the above, the magistrates rejected the allegation of violation of the principle of confidentiality of law in the definition of the COVID-19 vaccine in the list of mandatory vaccines, since the National Vaccination and Epidemiology Commission made this decision in accordance with the powers granted by the National Vaccination Law. The Court stated that it was important to note that Article 150 of the General Health Law states that this legislation is a matter of public order and must be complied with by every person living in our country, it also mentions the mandatory vaccination and revaccination against communicable diseases determined by the Ministry of Health. "Thus, the inclusion of the COVID-19 coronavirus vaccine in the national vaccination schedule and its mandatory nature for healthcare personnel must be understood in light of the provisions of the National Vaccination Law, which defines the general regulatory framework on the matter," the Court ruled. Informed consent is not required: It is reiterated that the COVID-19 vaccine is not an experimental treatment, and because patients' rights to autonomy and information are diminished when mandatory vaccination is imposed, in accordance with the entire body of regulations cited above. There are sufficient provisions that legitimize mandatory vaccination, so autonomy, in such cases, is diminished for the sake of protecting the general interest and well-being, namely, public health (Article 21 of the Political Constitution, Article 1 of the General Health Law, and the aforementioned vaccination regulations). "Conscientious objection" cannot be claimed. The right to conscientious objection has limits and limitations, and in cases where it conflicts with another fundamental right, the principle of practical concordance must be used. Therefore, a balancing judgment must be made between the conflicting rights. Mandatory vaccination against the coronavirus entails a collision between the right to conscientious objection and the right to health of individuals and the community in general (the underlying public interest that led to the measure). The Court again cited a ruling from October 2020 in which it defined that the Court has recognized the importance of vaccination as part of the essential health care that the Costa Rican State must guarantee in order to protect the fundamental right to health of all persons, and that the safeguarding of public health and the prevention of disease constitute a constitutionally legitimate aim that can validly justify mandatory vaccination. The measure adopted is appropriate, necessary, and strictly proportionate, insofar as the benefits generated for society as a whole outweigh the potential impact on personnel. Finally, it is important to reiterate Judgment No. 2021-000871 of 9:15 a.m. on January 15, 2021, according to which the Constitutional Court established the following: "it is not the responsibility of this Court (…) to refer to technical, medical, and scientific aspects that address vulnerability to a virus." Thus, this Court considers that the authorities' actions are based on the regulations on the matter and on technical and medical data that are shown to be reasonably substantiated.
Written by:Jaime Garro
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