The Italian Constitutional Court, with three parallel judgements published on 9 February 2023, has rejected the claims of unconstitutionality referred by several administrative courts concerning the law on healthcare personnel vaccination.
In judgement 14/2023, the Constitutional Court was asked by the referring court to evaluate the constitutionality of the law imposing mandatory vaccination to healthcare professionals including students involved in training programs (see here) . The Court holds the constitutionality of Italian legislation.
It has first defined the scope of the constitutional review. The control of constitutionality is aimed at verifying if the legislator, within the wide discretion the Constitution confers, has exercised its power according to the available and reliable scientific data at time of legislation. The scope of the review, according to the Court, focuses on the adequacy and proportionality of the measure, given the available scientific knowledge.
The referring court grounded their references on two basic issues: that the risks of vaccination should be framed within the force majeure principle and that the obligation to require informed consent was in conflict with mandatory vaccination.
The referring court contended that the legitimate sphere of risks to be associated with vaccination is related to force majeure, namely, to risks that were not known and could not have been known at time of legislation. When risks are known, the health care professional should be able to choose vaccination thereby exercising the right to self-determination. The Court has rejected this view and stated that the balance between the individual right to self-determination and the collective interest to protect health should be based on a risk/benefit analysis related also to known risks. Such balance should be defined in light of the constitutional principle of solidarity and the available scientific evidence. The principle of solidarity requires vaccination in order to protect the health of patients that have to engage into relationships with health care professionals.
The Constitutional Court has stated that both the legislative obligation to vaccinate for healthcare professionals and the negative consequences for not being vaccinated defined by the legislation are conforming to the principle of proportionality. Not only the Court has carried the analysis according to the principle of proportionality and reasonableness as defined by its precedents, but it has engaged into a deep comparative analysis, considering the approaches of various European and no European Courts. Such comparative analysis supports the conclusion about proportionality and reasonableness of the Italian legislative measure.
The Court has then examined the issue of informed consent in relation to mandatory vaccination. It has rejected the claim that no informed consent is required in case of mandatory vaccination since the healthcare professional has still the choice between vaccination and no vaccination, bearing in the latter case the negative consequences of the temporary suspension from the exercise of the profession. Hence it has concluded that informed consent is necessary even when vaccination is mandatory.