The issue of healthcare workers, who refuse to receive the anti-Covid vaccine, was object of a series of pronouncements of the Italian Council of State. Judges based their statements on a balance between constitutionally guaranteed interests, namely the freedom to decide how to dispose of the own body in accordance with the second paragraph of the Art. 32 of the Italian Constitution and the duty of the states to protect the public health in compliance with the first paragraph of Art. 32. Moreover, it has to be considered that doctors took an oath to exercise their work with diligence, skill and prudence, as well as observing the rules of ethics. Doctors have consequently to engage themselves to treat the sick as well as possible and not contribute to aggravate their health situation.

By refusing to get vaccinated, healthcare workers also put patients in danger of a potential risk of infection, which could worsen their physical condition. In addition, patients could develop much more serious symptoms due to the already precarious condition, which is triggered by the ongoing affection and the consequent weakening of the immune system.

In order to deal with this issue reasonably, it is necessary to take the two rights fixed in Art. 32 of the Italian Constitution into account and make a balance between them. According with the first paragraph of Art. 32 "the Republic protects health as a fundamental right of the individual and in the interest of society". The second paragraph adds: "no one can be forced to an health treatment if not by provision of law”. These interests must be weighed with reason and common sense in the single case.

Art. 32 is based on the positive and negative aspects of the right to health, namely the right to receive health treatment and the right not to be forced to undergo health treatment, even when lifesaving, unless the law requires it. The right of therapeutic self-determination is embodied in the right of everyone to choose whether or not to undergo medical treatment, when not legally obligatory, with regard of the ethical, religious, cultural and philosophical convictions that determine the decisions of each individual. The second paragraph of the article establishes the non-compulsoriness of health treatments if not by provision of law, thus giving constitutional relevance to the refusal of care. The sentence n.2847/2010 of the Supreme Court gives further confirmation to the importance of the right to self-determination as a means for the pursuit of the best interests of the individual, which may consist in the choice of a particular therapy, as in its refusal or its interruption. In contrast to this, there is an individual and, in the case in question, a collective right to health, which cannot be put at risk by the choices of the individual worker.

The Italian Council of State establishes from the beginning with the judgment n.7045 of October 20 2021 the legitimacy of compulsory vaccination against Covid for healthcare workers, rejecting the appeal filed by a healthcare operator in Friuli-Venezia Giulia. The measure under appeal provided for the suspension of the work of the health care professional, when the ASL ascertained the refuse to comply with the vaccine requirement, giving notice to the employer and the professional association.

The appeal was based on both a scientific and a legal argument. Doctors claimed to have doubts about the safety of the vaccine due to the short time for its testing. The Council replied that the production of the vaccine underwent a scientific secure procedure, consisting in a partial overlapping of the clinical trial phases, and that it was already certified by the competent authorities that the safety of the drug was not affected by the relative short time of processing in any way.

With regard to the legal argument, the Council emphasizes that pandemic situation requires to put the treatment of Covid disease before the individual ideological approach to the medical treatment, as "the potential risk of an adverse event for a single individual by getting vaccinated is minimum in comparison with the actual risk for the entire society without the use of the vaccine”.

The protection of public health has to be guaranteed also in accordance with the principle of solidarity, which is fundamental in a democratic country and that is anchored in article 2 of the Italian Constitution. The Italian Council of State has therefore proved to be in line with what was previously held in jurisprudence, stressing the value of art. 32 and the balance between the first and second paragraph, as it provides for a “reservation of law” for which the right of therapeutic self-determination is secondary in case of a vaccine requirement provided by law.

The Italian Council of State intervenes on this matter again on December 2, 2021, with the decree n.6401 and on February 4, 2022, with the Ordinance No. 583. In the first case, the Council decides on the appeal against the decree adopted by the Regional Administrative Court for Abruzzo that establishes the non-compliance of a health care provider with the vaccine requirement and defines, therefore, its suspension from the Medical Association. The Council rejected the appeal by referring to what has already been established in relation to the balance between the two interests at stake.

It reiterates that healthcare workers have the duty to protect the right to public health and make their best to not aggravate the patient's condition. The doubts concerning the effectiveness and the risks of the vaccine seem to have no scientific basis and they shall remain secondary to the protection of people health, when the vaccine was already certified as secure.

With the Ordinance of February 4, Council of State rejected the appeal confirming what was already established with the judgment No. 7045 of 2021. The right to self-determination is always recessive to that of the protection of public health, when a high potential risk as in case of a pandemic is actual. As far as the measure of suspension from work has no sanctioning function cannot be considered discriminatory or harmful for the fundamental rights to work of the addressee, as the Council underlined.

In conclusion, in the judgment No. 5/2018 of the Constitutional Court was reiterated that the vaccine, as a health treatment, is directed not only to improve the health of those individuals who undergo the injection but it is also aimed at protecting the public health, as it prevents the proliferation of the virus. This consideration and the mentioned constitutional balance should be always thoughtfully regarded by dealing with the controversial question of the mandatory vaccination for the health care operators.