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Italian Constitutional Court - decision n. 268/2017: complications resulting from reccommended vaccinations
22 Novembre 2017

The Constitutional Court held that Art. 1, para. 1, of law n. 210/1992 (compensation for individuals harmed by irreversible complications resulting from compulsory vaccinations, transfusions and the administration of blood derivatives) is unconstitutional insofar as it does not also provide a right to compensation for those harmed by the recommended influenza vaccination.

Numero
268
Anno
2017

The constitutionality of said law was raised by the Milan Court of Appeals. It referred to a case where a citizen had applied for compensation from the State after being diagnosed with Parsonage Turner Syndrome after receiving a vaccination recommended by the Ministry of Health. According to Art. 1, para. 1, of law n. 210/1992, such compensation could only be given for damages caused by compulsory vaccination.

While the court of first instance had recognised a right to compensation, the Ministry of Health brought the case to the Court of Appeals. That Court claimed that the literal wording of the provision precluded an interpretation consistent with the Constitution, so the question was referred to the Constitutional Court.

The Constitutional Court first confirmed the equivalence of compulsory and highly recommended vaccinations. It is underlined that “notwithstanding the different focus of the two techniques under discussion here, the key issue for deciding the constitutional question under review is the essential objective of preventing infectious diseases pursued by both: namely, the common purpose of guaranteeing and protecting (also) public health by achieving the highest possible vaccination coverage. Within this perspective, which is centred on health as an interest (also) of society as a whole, there is no qualitative difference between an obligation and a recommendation”.

The Court then emphasises that influenza vaccination is part of those campaigns aiming to protect health as a collective interest. Because of its nature as a measure aimed at protecting the community, the judges argue that there are both legal and economic reasons in favour of compensation from the State for injuries arising as a result of the influenza vaccination. In the words of the Court: “the shift to the public at large of any negative consequences that may result from the influenza vaccination necessarily ensues from the application of the constitutional principles of solidarity (Article 2 of the Constitution), protection of public health (Article 32 of the Constitution) and reasonableness (Article 3 of the Constitution)”. Concerning economic reasons: “the broadest distribution of vaccines as a preventive measure may in particular alleviate the burden which influenza outbreaks usually impose on the national health service and on employment, a burden which is not only financial in nature”.

Eventually, the Court refuses that compensation must be provided only to specific categories, while it must be provided to all of those who undergo vaccination. The judges claim: “the fact that the recommendation is accompanied by free-of-charge administration of the vaccine for certain classes of individuals could not establish any limitation of the class of persons eligible for compensation. The specific position of those classes of people does not by any means diminish the collective significance which the protection of health takes on for the general population, as the vaccination of each and all contributes to achieving the goal of the widest coverage, pursued through the recommendation”.

For those reasons, the Court declared Article 1, para. 1, of law n. 210 /1992 unconstitutional insofar as it does not provide a right to compensation, under the conditions and according to the procedures laid down by said law, for those who received the recommended influenza vaccination and were harmed.

In the box on the right, find the official translation of part of the decision offered by the Constitutional Court.

Full text of the decision in Italian can be found here.

Derek Van Becelaere, Raffaele Guerini
Pagina pubblicata Mercoledì, 22 Novembre 2017 - Ultima modifica: Lunedì, 02 Settembre 2019
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