Calls for the State Council to update the Public Health Law to take measures without worrying about it
The State Council Advisedto Government The need to update and improve health legislation This, among other things, It serves regional executives as a legal framework To take action against pandemicWhen the alarm condition is not in effect.
It is, in particular, the Basic Law of 1986 on Special Measures in Public Health Matters, the content of which they understand that “may need legislative amendment providing more detail and accuracy, in order to provide the competent health authorities The best possible legal framework to face current and future situations A grave danger to public health. ”
This is what the government’s main advisory body showed in an opinion sent on March 22 to advise it on the desirability of appealing to the unconstitutionality of the Galician Health Law reform recently promoted by Alberto Nونñez Viejo’s Regional Executive Director. – The Council of Ministers agreed to submit the aforementioned appeals last week.
In its opinion, the Council of State understands that it is appropriate to refer the aforementioned regional rule to the Constitutional Court, knowing that it, for example, crosses the line in matters such as compulsory vaccination.
However, this body also takes the opportunity to point to the need for this modernization of the state’s health legislation because, as it realizes, it “certainly does not contain the appropriate mechanisms to deal with a crisis of this magnitude”.
The law “for nearly 40 years”
In this sense, they point to it It’s a standard that he applied “nearly forty years ago.”, And that it “contains a very general list of special measures in matters of public health that limit basic rights and public freedoms.”
“It may be inadequate, according to the constitutional principles of administrative competence and legal certainty, to confront The needs faced by the competent health authorities, Acknowledges the State Council in its report, compiled by Europa Press.
In any case, the State Council’s report, which is mandatory but not binding, assesses that it is appropriate to file an appeal of unconstitutionality to one of the sections specified in the Galician Health Act, those relating to measures to combat the epidemic – – specifically, Section V of the single article of the Law Autonomous Community of Galicia 8/2021, dated February 25 -.
The aforementioned fifth section introduces Article 38 of the Galician Health Law with two parts, and the State Council agrees to appeal the second part: the part that talks about preventive measures for recognition, treatment, hospitalization or monitoring when there is a risk to the health of the population.
In addition to other general measures, the Feijóo Reform provides that patient control measures can be adopted, such as home isolation (currently confinement of people with coronavirus), confinement in a hospital center, isolation or detention in another location suitable for this purpose.
The new standard also includes control measures for people who have been in contact with sick people (such as currently isolated from positive contacts); Or undergo preventive preventive measures, including vaccination or immunization.
This section of the law also enables control measures over the “immediate environment” of patients or those with whom they have been in contact, as well as “affected areas” (geographical locations), which may entail, for example, restricting movement or circulation (such as closing the perimeter of cities). Or health zones) or restrictions on groups of people (such as the meeting limit, as is currently in place in Galicia).
He rejects compulsory vaccination by the law of Galicia
The State Council places special emphasis on the aspect of vaccination. In this, the report says so “It should be analyzed and questioned about its condition, On the basis of the division of powers between the state and societies. In other words, he’s in favor of posing this question to TC.
On the contrary, it is more about advocating aspects such as restricting mobility. He also warns, although not included in Basic Law 3/1986 (a state law that serves as a legal framework for the development of regional regulations), he believes that it is “without a doubt an appropriate measure to control patients, from people who have been in or have been in contact with.” Their and immediate environment. ”
In this sense, remember that your Regional Board of the National Health System CISNS has established territorial delimitation measures that, with some exceptions, have been validated by the Supreme Courts of Justice. In this regard, he endorses that the Council’s agreements are “mandatory”.
Thus, it analyzes that Galician law limits restrictions to the “immediate environment” of diseased and affected areas “in the terms” of the state statute. “He is not considering adopting measures to restrict or restrict movement A more general scope would distinguish, because of its greater degree of influence on fundamental rights and public freedoms, the declaration of a state of alarm, “adding in this regard that the government intends to appeal to the Joint Technical Committee.
Finally, it mentions a third measure from the Fifth Division mentioned above, in relation to the restrictions imposed on gatherings of people. On the one hand, he asserts that the measures established by Galician law “do not appear to be different” from those that were already adopted and continued in the last year of the epidemic.
But it makes clear that what is important is whether societies can, from a constitutional point of view, develop state law for inclusion in regional legislation. In this sense, the Council of State affirms that there are questions of fundamental rights and freedoms that must be reserved for the state to ensure, among other things, “that they are adopted by a qualified majority and constitute the minimum common denominator throughout Spain.”
For all these reasons, the State Council notes the reasons for submitting Article 38 of the Galician Health Act to the TC (Section V mentioned above), but understands that the requirements for the adoption of measures (Article 38ter or Section VII) are specific crimes and penalties (paragraphs 12 to 15 or Articles 41) Bis to 44 bis) “does not appear to conflict with the constitutional order.”