2021-10-05 - Spain - Judgement EN

COURT OF FIRST INSTANCE Nº 6 Procedure: Voluntary Jurisdiction.
General Nº
C/ Párroco Hernández Benítez nº 10 Procedure: 0000848/2021
Telde NIG: 3502642120210005570
Telephone: 928 89 94 80 Subject: Unspecified Resolution:
Fax: 928 89 94 94 Auto 000627/2021 IUP:
Email: instancia6.tel@justiciaencanarias.org TR2021038579
Intervention: Intervener: Lawyer:

Procurator:ApplicantMINISTRY OF THE PROSECUTOR'S OFFICE
DefendantMaria Del Carmen Santana Margarita Del Pino
Aleman Santana Guerra
DefendantJuan Jose Rodriguez NavarroCristina Rosa Armas
Suarez Legal DefenderMargarita Del Pino Santana
War
AUTO
In Telde, 5th October 2021
FACTUAL BACKGROUND
FIRST.- The Public Prosecutor's Office presented an application for voluntary jurisdiction in
order to obtain judicial authorisation to administer the vaccine against COVID-19 to MARÍA
DEL CARMEN SANTANA ALEMÁN in order to protect her life and health.
SECOND.- A legal defence counsel was appointed and the diligences that were considered
pertinent were carried out in the appearance that took place on the 1st of October 2021.
LEGAL FOUNDATIONS
FIRST. Vaccines are considered special medicines according to the Law on Medicines,
(Revised text of the Law on guarantees and rational use of medicines and health products)
which in its article 45 regulates the specific health guarantees of vaccines and other biological
medicines: They are subject to the regulations contained in the law itself and those determined
by regulation (Royal Decree 1345/2007 of 11 October (EDL 2007/184162), which regulates the
procedure for authorisation, registration and conditions of dispensing of industrially
manufactured medicines for human use).
Exceptions are individualized preparations of vaccines and allergens for a single patient.
In the interest of public health, the Spanish Agency of Medicines and Health Products
(hereinafter AEMPS) may submit each batch for prior authorisation and make marketing
conditional on its conformity.
This document has been electronically signed by:

NOEMÍ LÁZARE GÓMEZ - Magistrate-Judge 05/10/2021 - 11:30:06
The authenticity of this copy can be checked at https://sede.justiciaencanarias.es/sede/tramites-comprobacion-
documentos, using the following electronic document number: A05003250-
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1
In general for any type of vaccine and to date it is considered that vaccination is voluntary,
although there is a basic legal framework to establish a forced vaccination and in particular in
case of epidemics based on articles 4 and 12 of the Organic Law 4/1981 of 1 June, on states
of alarm, exception and siege: "The Government, in use of the powers granted to it by Article
116.2 of the Constitution (EDL 1978/3879), may declare a state of alarm, in all or part of the
national territory, when any of the following serious disturbances of normality occur: b) "health
crises, such as epidemics. The
The competent authority may, as the case may be, in addition to the measures provided for in
the preceding articles, take the measures laid down in the rules for the control of
infectious diseases".
Although Law 33/2011, October 4 (EDL 2011/217725), General of Public Health starts from a
general principle of voluntariness in public health actions, the Organic Law 3/1986, April 14
(EDL 1986/10073), of special measures in the field of public health establishes nuances in this
regard: Art. 2: "The competent health authorities may adopt measures of recognition,
treatment, hospitalization or control when there are reasonable indications that suggest the
existence of danger to the health of the population due to the specific health situation of a
person or group of people or the health conditions in which an activity is carried out".
Art. 3: "In order to control communicable diseases, the health authority, in addition to general
preventive actions, may take appropriate measures for the control of the sick, of persons who
are or have been in contact with them and of the immediate environment, as well as those
considered necessary in cases of risk of a communicable nature".
In turn, Law 41/2002, of 14 November (EDL 2002/44837), the basic law regulating patient
autonomy and rights and obligations, establishes in its article 9.2: "Physicians may carry out
clinical interventions essential for the patient's health, without the patient's consent, in the
following cases: a) When there is a risk to public health due to health reasons established by
law. In any case, once the relevant measures have been adopted, in accordance with the
provisions of Organic Law 3/1986 (EDL 1986/10073), they shall be communicated to the
judicial authority within a maximum period of 24 hours whenever they provide for the
compulsory internment of persons".
That is to say that the general principle of autonomy of will only admits limitation in exceptional
circumstances and among these is the case of risk to public health. In short, the general rule is
the non-compulsory nature of vaccination and only exceptionally the Organic Law 3/1986
(EDL 1986/10073) would allow to protect a compulsory vaccination in cases of epidemics and
health crisis and effective risk to public health while in cases where the risk is exclusively
individual, a compulsory vaccination would only be possible in the case provided for in art. 9.2
b) Law 41/2002 (EDL 2002/44837) mentioned above: "When there is an immediate serious risk
to the physical or psychological integrity of the patient and it is not possible to obtain their
authorization, consulting, when circumstances permit, their relatives or persons related to them
in fact, without the patient's consent".

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The following provisions of Organic Law 3/1986 (EDL 1986/10073) are applicable to these
cases of individual risk".
The jurisprudence offers exceptional cases in which the obligatory nature of a particular
vaccine in relation to the education and schooling of minors is weighed (Judgment of the T.S.J.
of the Contentious Administrative of Andalusia dated 28-3-2000, Judgment of the T.S.J. of the
Contentious Administrative of La Rioja dated 2-4-2002 or the most recent Judgment dated 22-
7-2013 of the 1st Section of the Superior Court of Justice of Andalusia ".... coexistence in a
social and democratic State of Law supposes not only the respect of fundamental rights on an
individual basis, but also that their exercise does not undermine the rights of the rest of society,
which is governed by guidelines of conduct that pursue the general interest. Thus, we are not
dealing here with a violation of the right to education, of which the admission of the minor to
school is good proof, but rather with a failure to comply with obligations whose purpose
is the prevention of disease, and which in practice translate into the requirement to prove the
systematic vaccinations that correspond to her age, which respond to the idea of obtaining a
group immunity that, in addition to protecting from contagion individuals not vaccinated due to
individual contraindications, allows the elimination of the disease in a given geographical area,
and even worldwide.
In any case in the case of vaccination on the occasion of the pandemic Covid
19 we are dealing with a VOLUNTARY VACCINE and this is recalled in the Vaccination
Strategy against COVID.19 issued by the Technical Working Group on Vaccination of the
Vaccination Programmes and Registry of the Interterritorial Council of the National Health
System. Without prejudice to the duty of collaboration that falls upon individuals, the
Vaccination against COVID-19 will be voluntary, except for the provisions of Organic Law
3/1986, of 14 April 1986, on special public health measures (EDL 1986/10073). It is considered
important to record cases of refusal of vaccination in the Vaccination Register, in order to know
the possible reasons for reluctance in different population groups".
SECOND.- INFORMED MEDICAL CONSENT BY SUBSTITUTION.
I- At the international level it is essential to remember that the UN Human Rights Council of 26-
9-2017 establishes the guiding principles applicable in this area:
"Recalls the general principles set out in the Convention on the Rights of Persons with
Disabilities, such as respect for inherent dignity, individual autonomy and independence, and
full and effective participation and inclusion in society. It emphasizes that States must ensure
that persons with mental health conditions or psychosocial disabilities, in particular persons
who use mental health services, have access to a range of human rights-based support
services to live independently, be included in the community, exercise autonomy and agency,
participate meaningfully in all matters affecting them and make decisions about them, and have
their dignity respected, on an equal basis with others,
Calls upon states to take all necessary measures to ensure that professionals

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health-care providers to provide persons with mental health conditions or psychosocial
disabilities, in particular those who use mental health services, with the same quality of care3
as others, including on the basis of free and informed consent, inter alia, by raising awareness
and respect for the human rights, dignity, autonomy and needs of such persons through
training and the promulgation of ethical standards for health care in the public and private
settings
Strongly encourages states to support the empowerment of persons with mental health
conditions or psychosocial disabilities to know and claim their rights, including through health
and human rights literacy, and to provide human rights education and training for health
workers, police, law enforcement officials, prison staff and other relevant professionals, with
particular emphasis on non-discrimination, free and informed consent and respect for the
will and preferences of all, confidentiality and privacy, and sharing best practices".
II.- In the field of state level regulations, it is worth mentioning Article 9 of the State Law on
Informed Consent 41/2002 of 14 November "...".
3. Consent by proxy shall be granted in the following cases:
a) When the patient is not capable of making decisions, at the discretion of the doctor
responsible for the care, or his physical or mental condition does not allow him to take charge
of his situation. If the patient does not have a legal representative, the consent will be given by
the persons related to him/her for family or de facto reasons.
b) When the patient's capacity has been judicially modified and this is stated in the sentence.
c) When the minor patient is not intellectually or emotionally capable of understanding the
scope of the intervention. In this case, consent will be given by the minor's legal
representative, after having heard his or her opinion, in accordance with the provisions of
article 9 of the Organic Law 1/1996, of 15 January, on the Legal Protection of Minors.
4. In the case of emancipated minors or minors over 16 years of age who are not in cases b)
and c) of the previous section, consent cannot be given by representation.
Notwithstanding the provisions of the previous paragraph, in the case of an action of serious
risk to the life or health of the minor, according to the criteria of the doctor, the consent shall be
given by the legal representative of the minor, once the opinion of the same has been heard
and taken into account.
6. In those cases in which the consent must be given by the legal representative or by the
persons linked for family or de facto reasons in any of the cases described in sections 3 to 5,
the decision must always be taken in consideration of the greatest benefit for the life or health
of the patient.

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Those decisions that are contrary to these interests must be brought to the attention of the
judicial authority, directly or through the Public Prosecutor's Office, so that4 it may adopt the
corresponding resolution, unless, for reasons of urgency, it is not possible to obtain judicial
authorisation, in which case the health professionals will adopt the necessary measures to
safeguard the life or health of the patient, protected by the causes of justification of fulfilment of
a duty and of state of necessity.
7. The provision of consent by representation shall be appropriate to the circumstances and

proportionate to the needs to be met, always in favour of the patient and with respect for his or
her personal dignity.
The patient shall be involved as far as possible in decision-making throughout the healthcare
process. If the patient is a person with a disability, relevant support measures shall be offered,
including information in appropriate formats, following the rules set out by the principle of
design for all in a way that is accessible and understandable to persons with disabilities, in
order to enable them to give their consent on their own".
THIRD: The priority weighting of the greater well-being and the health and life of the patient is
the objective criterion that must be taken into account and the decision must be the most
respectful with the greatest benefit for the health, life and well-being according to medically and
socially consensual objectified criteria.
This is the most objective criterion and therefore less controversial because it seeks the
greatest benefit for the patient according to such parameters in accordance with the criteria of
the "lex artis" and that the doctrine considers consolidated in the aforementioned article 9.3 of
the law by stating that "consent by substitution is always granted in favor of the patient.
According to this criterion, while a patient can take decisions contrary to the medical indication
that affects him/her (article 21 of the Law), the surrogate or legal representative does not have
such a margin of decision. Once it has been accredited and objectified which option is the most
respectful of the greatest benefit to the health, life and well-being of the patient - in each
specific case and with respect to a specific medical decision - the so-called best interests of the
minor patient or those lacking the capacity to give consent is binding on his substitute or legal
representative and therefore, if his option is considered contrary to such best interests, the
decision should be submitted to the judicial criterion.
Well then, the priority weighting of the greater wellbeing and the health and life of the patient
seems to be taken into account by the state legislator by establishing in article 9.3 of the
aforementioned Law that the decision must always be taken in accordance with the greatest
benefit for the life or health of the patient, although this is modulated by section 7 "The
provision of consent by representation will be appropriate to the circumstances and
proportionate to the needs to be met, always in favour of the patient and with respect for his or
her personal dignity.
The decision to be taken must consider the specific health regulations mentioned above within
the framework of the general regulations laid down in our Constitution in article 15 (EDL
1978/3879) which recognises the right to physical integrity" and article 43 which recognises the
right to the protection of health and attributes to the public authorities the power to organise
and protect public health through preventive measures and the necessary benefits and
services, and at a procedural and substantive civil level in the following precepts: Article 762
Ley de Enjuiciamiento Civil The Law on Voluntary Jurisdiction (arts. 87 and following ) which.
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inadequate power of guardianship of persons with judicially modified capacity .
In the present case, DOÑA MARÍA DEL CARMEN SANTANA ALEMÁN, according to the
medical report in the file, does not have the capacity to decide about her vaccination. Her
husband, JUAN JOSÉ RODRÍGUEZ NAVARRO, as de facto guardian of his wife, has refused
to have the COVID-19 vaccine administered to her.
The perspective to be considered in the present case is the individual patient, that is to say, the
identification of the best protection and the best benefit for the health of the affected person,
but also the wishes and will of the person who exercises the de facto guardianship, leaving
aside any other consideration of Public Health, given the voluntary nature of the
aforementioned vaccine.
The immunization against COVID-19 through the vaccine is the main strategy to overcome the
pandemic and the authorization of the aforementioned vaccine by the European Medicines
Agency and the Spanish Agency for Medicines and Health Products allows us to assume that
the same have been developed -despite the speed of the process- with the maximum
guarantees of quality, safety and efficacy and that therefore the benefits of its administration
outweigh the risks arising from the same found so far.
However, and despite the desirability that vaccination reaches the largest possible population,
as an effective means to fight against the pandemic, we understand that in the present case
the will of the guardian in fact must prevail, since the vaccine is voluntary, no well-founded and
specific medical reasons have been accredited that justify the need to provide the vaccine to
MARÍA DEL CARMEN SANTANA ALEMÁN, especially when it has not been accredited that
she is subjected to a high risk of contagion and on the other hand because there is no
evidence that she belongs to a special risk group or that she is, a priori, especially vulnerable
to the disease.
In addition, as stated in the preamble to Act 8/2021 of 2 June, which reforms civil and
procedural legislation to support persons with disabilities in the exercise of their legal capacity,
the aim is to take a decisive step towards bringing our legal system into line with the
International Convention on the Rights of Persons with Disabilities, This international treaty
proclaims in article 12 that persons with disabilities have legal capacity on an equal basis with
others in all aspects of life, and obliges States parties to take appropriate measures to provide
persons with disabilities with access to the support they may require in exercising their legal
capacity. The purpose of the convention is to promote, protect and ensure the full and equal
enjoyment of all human rights and fundamental freedoms by all persons with disabilities and to
promote respect for their inherent dignity.
In the manifestation of this objective, the convention introduces important developments in the
treatment of disability, in addition to requiring States parties to ensure that in all policies and
programmes they adopt, the Convention on the Rights of Persons with Disabilities

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measures relating to the exercise of legal capacity shall provide adequate and effective
safeguards to prevent abuse in accordance with international human rights law. Such
safeguards shall ensure that measures relating to the exercise of legal capacity respect the
rights, will and preferences of the person, that there is no conflict of interest or undue influence,
that they are proportionate and tailored to the person's circumstances, that they are
implemented within the shortest time possible and that they are subject to periodic review by a
competent, independent and impartial authority or judicial body. The safeguards shall be
proportionate to the degree to which such measures affect the rights and interests of
individuals.
Thus, it is necessary to change from a system such as the one in force until now in our legal
system, in which substitution predominates in the making of decisions that affect people with
disabilities, to one based on respect for the will and preferences of the person who, as a
general rule, will be in charge of making his or her own decisions.
In the present case, the de facto guardian has explained at the hearing the reasons why, for
the time being, he does not wish his wife to be vaccinated, and which are
fundamentally based on the lack of prescription or medical prescription, and the
absence of informed consent. JUAN JOSÉ RODRÍGUEZ appears as a correct carer of his
wife, concerned about understanding the medication given to her and the negative effects that
it may cause to his wife, having taken the decision not to vaccinate his wife for the moment, a
decision that has to be respected, in attention to the inspiring principles of the new law, in
attention to the voluntary nature of the vaccine and the inexistence of sufficient medical
reasons for its forced administration.
For the reasons set out above, the application for leave to appeal must be dismissed.
ENACTING PART
It is not necessary to grant authorisation to proceed with the administration of the

COVID-19 vaccine to MARÍA DEL CARMEN SANTANA ALEMÁN against the wishes of
her de facto guardian.
The parties will be notified of the present resolution in legal form, with the indication that it is
not final, and that an appeal may be lodged against it within 20 days of notification, before this
Court.
For the admission of the appeal, a deposit of 50 euros must be made and paid into the account
of this Court, indicating in the observations of the deposit document that it is an appeal,
followed by code 02 and the specific type of appeal, in accordance with the provisions of Law
1/2009 of 3 November, except in the cases of exclusion provided for in section 5 of the fifteenth
additional provision of the said law or beneficiaries of free legal aid.

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So disposes, orders and signs D./Mrs. NOEMÍ LÁZARE GÓMEZ, MAGISTRATE JUDGE of the
Court of First Instance Nº 6 of Telde.
THE MAGISTRATE JUDGE

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2021-10-05 - Spain - Judgement EN

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COURT OF FIRST INSTANCE Nº 6 Procedure: Voluntary Jurisdiction.

Intervention: Intervener: Lawyer:

In Telde, 5th October 2021

This document has been electronically signed by:

This document has been electronically signed by:

This document has been electronically signed by:

3. Consent by proxy shall be granted in the following cases:

This document has been electronically signed by:

7. The provision of consent by representation shall be appropriate to the circumstances and

This document has been electronically signed by:

It is not necessary to grant authorisation to proceed with the administration of the

This document has been electronically signed by:

THE MAGISTRATE JUDGE

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