Vaccinazione anti COVID-19 e consenso del minore ultrasedicenne

Abstract

The essays focuses the issue of minor’s informed consent in connection with COVID-19 vaccination in English and Italian legal systems. The starting point in the English legal system is the Gillick competence criterion, in accordance with a well-known on minor’s informed consent, in order to verify the ability of the minor regarding the choice to undergo COVID-19 vaccination. This point of view emerged from English case law, in particular from the UK Supreme Court ruling of 26 September 2019 which strengthened the decision-making autonomy of the minor in balancing with parental authority configuring his possible compression as a deprivation of personal freedom, falling within the scope of the fundamental rights guaranteed by the European Convention on Human Rights of 1950, in particular by articles 5 and 8 of the ECHR; as well as, more recently, with specific reference to a minor’s choice to undergo experimental medical treatment, to the High Court of Justice - Queen’s Bench Division ruling of 1 December 2020 regulating the con- troversial matter by a decision in which criteria for judges to verify the child’s ability to give consent have been put. At the same time on the level of Italian law, given the lack of a general criterion such as Gillick competence, some judicial interventions, albeit in a fragmentary way, have already opened to the recognition of a sort of pre-capacity to act to over 16 minors in some areas, even in the absence of a clear and unambiguous discipline, the adoption of which today would become more necessary than ever - given the emergency situation - with reference to anti-Covid-19 vaccination.