The Pro and Cons of Doctors’ Criminal Liability Shield

Decree-Law 44/2021 establishes the criminal non-punishability of vaccinators. Nevertheless, the rule is inapplicable and does not prevent legal action against health personnel. However, it solves a problem in the short term. The analysis of Andrea Monti – Adjunct Professor of public order and safety, University of Chieti-Pescara. Initially published in Italian by

Article 3 of Decree-Law 44/2021 states that

for the facts referred to in Articles 589 and 590 of the Criminal Code occurred due to the administration of a vaccine for the prevention of infections by SARSCoV -2, carried out during the extraordinary vaccination campaign in implementation of the plan referred to in Article 1, paragraph 457, of the Law of 30 December 2020, no. 178 of 30 December 2020, punishability is excluded when the use of the vaccine complies with the indications contained in the marketing authorisation measure issued by the competent authorities and the circulars published on the institutional website of the Ministry of Health relating to vaccination activities.

This provision is the ‘criminal shield’ invoked by doctors and health personnel to protect themselves from legal assaults (more or less in good faith) by people who have suffered damage due to vaccine administration.

The idea of the ‘criminal shield’ was initially part of the Italian Acciaierie Ilva (the biggest European Steel company) and Indian Arcelor Mittal agreement. Because of the severe pollution associated with the plant activity, the Indian company asked for protection from criminal prosecution as a condition for restarting the plant. The Italian Parliament then passed a law asserting top management’s non-criminal liability if they applied a proper environmental plan to manage the furnaces.

The conceptual analogy with the Covid criminal shield is obvious: just as Ilva managers are not criminally liable if they implement an environmental plan, those who administer the vaccine ‘following rules’ are not criminally liable (moreover, only for manslaughter and injury).

This “shield”, however, like that of Ilva, is made of cardboard. When a criminal investigation starts, the shield will yield at the first blow for at least three reasons.

Firstly, no law can prevent a magistrate from investigating the modalities of use of the vaccine.
Secondly. No law can eliminate a doctor’s responsibility in case of a diagnosis made with gross negligence.
Finally, no law can obliterate the right to compensation for damages caused by professional negligence.

Decree 44, therefore, creates more problems than it solves since it directly affects the design itself of the vaccination campaign. On the one hand, the need to vaccinate large numbers of individuals in the shortest possible time does not allow for a personalised anamnesis before inoculation. On the other hand, it is precisely the indication of adverse reactions’ existence that would make it necessary to ascertain the presence of risk factors in each patient before proceeding with the vaccination.

Finally, regardless of whether the hospital decided to carry out individualised tests, if, interacting with the patient, a doctor notices symptoms that advise against the administration, he should not proceed. Otherwise, he assumes a (criminal) responsibility for the choice. Before decree 44, the responsibility for damage or death attributed to the vaccine had to be ascertained case by case. Now the public prosecutor has an exact target to investigate: to verify whether the vaccine’s administration complied with instructions of AIFA (the Italian authority that authorises the sale of drugs). There is, moreover, a further issue: the effect of more or less scientific studies or political decisions taken by other countries that would affirm the dangerousness of the vaccine. In the absence of timely decisions by Aifa, would doctors who continue to administer the vaccine be ‘shielded’ from criminal charges?

In a perfect world with infinite resources, every patient would be tested and adequately monitored before, during and after vaccination. In reality, however, this is not possible, and so – pragmatically – it is impossible to avoid accidents caused not by the vaccine but by the organisational limitations of the vaccination campaign and the national health system.

A law that had wanted to establish an effective criminal shield, then, should have clearly stated that in the name of the need to vaccinate the population with maximum efficiency, errors and negligence in the management of vaccines are not criminally punishable and do not give the right to compensation for damages. It is clear that, in a Western democracy, such a choice would be out of the question because it would result in an unacceptable social Darwinism and the affirmation of the principle (extendable to any other political domain) that, in the name of higher interests, it is possible to guarantee impunity even for unjustifiable behaviour.

Rather than a weak criminal shield, then, acknowledging the impossibility of avoiding damage resulting from organisational shortcomings and individual negligence should have led to the State assuming responsibility for compensation, following extremely rapid administrative (rather than judicial) procedures to ascertain the right of the injured party. This option would have had the merit of defusing a significant part of criminal litigation, allowing the application of extenuating circumstances in the event of a plea bargain and conviction of the health worker and, above all, giving the (ascertained) victims a reason for what happened to them.

Legal technicalities aside, however, the story of decree 44 highlights the need for clear objectives in public policy choices for the management of pandemic containment and the fact that these objectives are not there – or not correctly identified.

The effects of the absence of a strategy, not only in the governments that have followed one another in recent years, are apparent. To name but a few, we need only think of the judicial authorities who, in the name of the precautionary principle, seize batches of vaccines without any evidence of possible offences. Alternatively, of the media frenzy every time an adverse event happens, even without any proof, the vaccine caused them. Or, finally, of the obsessiveness of communication campaigns favouring the vaccines that inevitably lead even the most rational of people to suspect that there is something wrong out there.

If there is but one choice to make, it should be to achieve a real synergistic cohesion between the executive, the intermediate bodies and the world of information to convey a coherent message and support it with indisputable facts. To paraphrase General von Moltke, it is true that no plan can withstand the impact of battle. Indeed, one could say that when making political decisions, rationality is not necessarily a criterion to follow because the reactions of the various parts of society do not follow the canons of logic. So, one might conclude that issuing Decree 44 may not have been a legally perfect operation, but it solves a problem in the short term. However, and this is the point, the problem is solved by inserting more complication levels into the system, not by simplifying it.


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