Considerations on some court judgments concerning the compulsory vaccination for healthcare workers in Italy

On 6 July 2022, a decree of a judge of the Ordinary Court of Florence created an intense discussion about the anti-Covid-19 vaccines and their regulation in Italy. By decree no. 7360/2022, the judge temporarily suspended the Order of Psychologists of Tuscany provision that prohibited a psychologist from practising her profession as she was not vaccinated. In reinstating the worker, the judge admitted the possibility for the worker to exercise “in any way (both in the presence and remotely) in the same way as her vaccinated colleagues”. ¹ Justifying his decision, the judge stated that “the suspension of the practice of the profession risks compromising the individual’s primary assets such as the right to his sustenance and the right to work expressed by art. 4 [Article 4 of the Italian Constitution], considered an expression of the freedom of the person and his dignity, which is guaranteed precisely by freedom from needs”.

This decision was followed by very strong responses from various institutional organizations. The Order of Psychologists of Tuscany stated: “the healthcare association, which is the Order of the Psychologists of Tuscany, are obliged to respect the decree law 44 of 2021 about the vaccine obligation”. ² The president of the Italian National Association of the Order of Doctors (FNOMCeO) ³ referred to a recent study ⁴ that estimated approximately 19.8 million deaths were avoided in the world in a year due to the vaccine programmes and asserted that “such a fanciful precautionary measure cannot compete with the scientific data processed by the Imperial College of London and published in The Lancet Infectious Diseases or analysed by the [Italian] National Institute of Health”. Further, with reference to Italian law about Covid-19 compulsory vaccination of healthcare workers (HCWs), the president stated that these rules “if deemed contrary to the Constitution, can be referred to the Constitutional Court but should only be challenged on a legal point”.

Even the Minister of Health commented angrily on the judgment saying it was “absolutely inadmissible and devoid of any scientific evidence”, a “judgment of which we must be ashamed”. ⁵ Actually, in Italy, there have already been judgments whereby unvaccinated HCWs have been reinstated.^6,7According to these judgments, vaccination would be imposed on the worker not to protect his health but that of others, thus respecting the prerequisites of art. 32 of the Constitution. However, this obligation would be ineffective because “the person who has undergone the vaccination, can still become infected by the virus and can infect others”. The latter aspect would therefore elide the assumption that the vaccine obligation for HCWs would be compatible with art. 32 of the Italian Constitution, which is intended to protect collective health. The mandatory vaccination, according to the judges, would therefore be contrary to Articles 3 (right to equal social dignity and equality before the law) and 35 (labour protection) of the Italian Constitution, since, as an alternative to the vaccine, “the use of the much more efficient [Covid-19] swab” is not allowed. The decision of the Court of Florence did not bring any substantial changes, but upheld its decision using a controversial series of considerations relating to technical and scientific elements. In particular, the judge expressed some considerations about the failure of the decree (later transformed into law – Law of 28 May 2021 no. 76) on the vaccine obligation for HCWs. Specifically, the judge stated that this decree, rather than “prevent the disease and ensure safe conditions in the health field”, would instead have determined “a phenomenon opposite to what we wanted to achieve with vaccination, namely an overflow of infection with the formation of multiple viral variants and the prevalence of infections and deaths precisely among those vaccinated with three doses”. The judge also added that:

“art. 32 of the Constitution within the ‘person-centred’ constitutional charter after the experience of Nazi-fascism does not allow us to sacrifice individual interest for a real or presumed collective interest and even less does it allow him to be subjected to invasive medical experiments, without his free and informed consent, given that informed consent is not conceivable when the components of the serum and the mechanism of their operation are, as in this case, covered not only by industrial secrecy but also, incomprehensibly, by ‘military’ secrecy; given that so far, after two years, the components of serum and the medium and long-term effects are still unknown, as written by the manufacturers themselves, while it is known that in the short term they have already caused thousands of deaths and serious adverse events.”

The judge subsequently recalled the principle of human dignity that would be harmed by the imposition of medical treatments without the consent of the person concerned, stating that this principle “substantiates art. 1 of the German (not by chance) Constitution”.

Without reference to any bibliography, the judge stated that the worker cannot be forced:

“to undergo experimental injection treatments so invasive that they infiltrate DNA, altering it in a way that could be irreversible, with effects to date not predictable for his life and health; whereas from an epidemiological point of view the condition of the vaccinated subject is not dissimilar from the unvaccinated one because both can become infected, develop the disease and transmit the contagion.”

Finally, when considering the imposition of vaccines to be illegal as a requirement to continue in own profession, European Regulation No. 953/2021 was relied upon. The latter, according to the judge, “prohibits discrimination against European citizens based on vaccination status”. Regarding subsequent decrees or judgments on compulsory vaccination, in our opinion, it is appropriate to try to clarify some points. The lack of unconstitutionality regarding the Law of 28 May 2021 no. 76 (conversion into law, with amendments to Decree-Law no. 44 of 1 April 2021) has been yet clarified. ⁸ This law was a decisive moment in the protection of public health and in allowing adequate safety conditions to HCWs who provided care and assistance services for the community. ⁹ With reference to the principle of equality pursuant to art. 3 of the Constitution, now considered as a “criterion of reasonableness”, the rational choice of health personnel as compulsorily vaccinated subjects has been clarified as they present a much greater risk of both infections and spread of the virus among patients. Between January and May 2021, at the time of the legislative choice, the WHO indicated for Italy an evaluation of a median estimate of 3,970 deaths (a minimum estimate of 1,462 and a maximum of 5,633) among HCWs. ¹⁰ Also in 2021, the first trials on vaccine efficacy, in the European context, showed among HCWs a reduction in hospital admission and mortality risks of 95% and 97% respectively, after two doses. ¹¹ The Italian Government has therefore adopted a measure purely aimed at protecting the health of HCWs, a condition which, moreover, has also been guaranteed by the status of an economically developed country. ¹⁰ With regard to the efficacy of vaccination, ¹² it should be pointed out that HCWs are crucial in providing care and assistance to communities. Their health and working validity, especially during a pandemic, is a collective resource to be protected as a priority. The serious public health problems due to the shortage of HCWs or their employment in the treatment of Covid patients, rather than in their ordinary tasks, are well known. ¹³ Protecting their lives through vaccines therefore indirectly provides a protective factor for collective health. On the other hand, that is not in contradiction with the usefulness of means such as masks and traceability by swabs. ¹⁴ There is also no conflict with European Regulation No. 953/2021, cited by the judge. The same decree was directed, in fact, to the regulation of the movement of citizens on European territory and not to that of eligibility for work for health professionals. The same regulation, moreover, does not consider the merits of compulsory vaccination, merely asserting in point 36 that it is necessary to avoid indirect discrimination against people who are not vaccinated for specific motivations such as medical reasons; and, in art. 5 paragraph 5, regulating the acceptance of proof of vaccination by the Member States in order to derogate from restrictions on free movement. ¹⁵ With regard to the statements in the judge’s decree on purely scientific arguments, we limit ourselves to recalling that even recently, many months after the introduction of the main Covid-19 vaccines, assurances both on efficacy^4,16 and safety^17,18 have been reaffirmed. In conclusion, to date, there are no legal or epidemiological-health reasons to delegitimise the rule that requires vaccination among HCWs.