A judge forces for the first time to vaccinate an incapacitated elderly woman

A judge has forced for the first time in Spain to vaccinate against the coronavirus an incapacitated elderly woman, despite the opposition of her daughter. The Santiago de Compostela guard court decided last Saturday that the woman, who lives in the DomusVi San Lázaro Residential Center for the Elderly, be immunized with the Pfizer and BioNTech vaccine, after the favorable forensic report, because her health must prevail over the contrary opinion of her daughter, the resident’s reference relative.

“Is it urgent to vaccinate an elderly woman in the pandemic? The contagion figures indicate that yes, it is notorious that there is a high number of deaths and shielding it was something urgent. Few things are more urgent than saving a life. Does the court’s performance help speed? Yes, because the matter came to me on Friday afternoon and the vaccination was on Sunday [aunque finalmente se retrasó]. It was likely that this woman would miss the train ”, says Judge Javier Fraga about the urgency of his pioneering decision.

Despite the fact that vaccination is voluntary, similar court decisions will foreseeably be issued from other regions, given that residences throughout the country – out of a total of 5,542, according to the Imserso – are filing for the magistrates to force their disabled elderly to be vaccinated despite family opposition. The Seville Prosecutor’s Office has already advanced its support to two centers for the elderly with refusals from relatives and the Valencia Prosecutor’s Office studies a dozen cases before claiming the judges, reports Efe.

The Galician residence asked to vaccinate the old woman last Friday afternoon and the Santiago Guard Court assumed the response in record time. On Saturday morning the forensic doctor issued his report, which confirmed the incapacity of the 84-year-old woman. In the afternoon, the daughter of the old woman declared in court to show her opposition to the puncture and shortly after the magistrate issued the order that required the resident to be vaccinated the next day, according to the calendar set by the Xunta. Finally, vaccination at the center has been delayed and the elderly woman is awaiting her first dose.

“It is true that vaccinating can carry a risk, but not doing it too. The epidemic is expanding and the vital risk is very significant, it is about balancing the two risks and opting for the lesser evil, which for an 84-year-old is to be vaccinated, “adds the judge by phone. Despite being a matter of the civil jurisdiction, the magistrate, head of the Court of Instruction 2 of Santiago, assumed it in guard duty and resolved without waiting for a court of First Instance so that the old woman could be vaccinated on time.

For the second injection, scheduled for 21 days, the judge leaves the door open to cancel it only if there is an adverse reaction: “This instruction may be disregarded in the event that the affected person regains her capacity or that subsequent medical examinations advise against the administration of the vaccine ”, reads the car. If your children decide to remove the elderly woman from the center, they must return her for the first dose and again 21 days later for the second injection.

The woman’s daughter, with the initials MLP, designated as a relative of reference to the residence, alleged that she was opposed to her mother’s vaccination due to pressure from her siblings, fear of possible adverse reactions from the vaccine and “the burden of responsibility that entails the obligation to have to decide for another person ”. This Wednesday Yolanda Noguera, the old woman’s daughter-in-law, assured that the witness “lied to the judge because the other two children agree that she be vaccinated.” The resident’s daughter told the judge that it seemed “more sensible” to wait to see the possible effects on other people before vaccinating her mother.

However, the magistrate argues that to avoid “the vital risk” posed by the pandemic for the elderly, they should be immunized. “Getting vaccinated and not doing it carry a risk that must be assumed because there are no intermediate options. In such a situation, the question is reduced to a pure weighting of which is the greater risk ”, reads the car. Prior to this dilemma, the forensic doctor recalled in his report the clinical trials and the constant evaluation that precedes the immunization of the population: “Vaccines are safe. Most reactions to vaccines are mild and temporary (…) It is much easier to suffer serious injuries from a vaccine-preventable disease than from a vaccine (…) The benefits of vaccination far outweigh the risks, and without vaccines there would be many more cases of illness and death ”.

Despite the fact that her vaccination was scheduled for last Sunday, the elderly woman is still waiting, like the rest of the elderly residents, because the nursing home decided to carry out a preventive screening before proceeding to immunize its residents. In this way, given that the decision was appealable and finally the woman was not vaccinated, the children could appeal the order before the Court of A Coruña. This newspaper tried yesterday, without success, to locate the old woman’s family.

The case of this residence in Santiago is the first of these characteristics that the company DomusVi comes across in the 89 residences it manages in Spain. During the immunization campaign against covid-19, no other guardian of an incapacitated hospitalized person has rejected the administration of the vaccine, company sources say. Those responsible for the residence of San Lázaro decided to take the matter to court “for the welfare of the rest of the residents and workers,” reports Sonia Vizoso.

A spokesperson for DomusVi, in whose residences 8,600 residents and more than 4,000 workers have been vaccinated, explains that the decision to go to court was a “company criterion” and no instructions have been received from the Administration.

Bigger benefit

The substantive debate on the immunization of disabled people was cleared five years ago when Law 26/2015 modified the child protection system and the Government took advantage of the situation to tweak the patient autonomy law. “In cases in which consent must be granted by the legal representative or persons related for family reasons, the decision must be adopted always taking into account the greatest benefit for the life or health of the patient, and otherwise it must be made known to the judicial authority ”, reads the norm.

Federico de Montalvo, president of the Bioethics Committee of Spain, supports the court’s decision. “There are two elements: the vaccine is licensed, not experimental, and it must be assumed that the benefit outweighs the risks. And the representative’s decision [la hija] affects the represented [la anciana] and to third parties because it protects the interested party and the community ”. And he adds: “The law obliges the representative to decide only beneficially, not badly. I would dare to say that without a pandemic, a licensed vaccine could not be rejected without harming an incapacitated person or a minor. The capacity of the representative is limited and that is why a person cannot refuse to vaccinate a child or a represented relative ”.

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