The competence of health authorities to take restrict measures on rights in a situation of health crisis

Abstract

We carry out a brief analysis of the constitutional grounds on health protection (arts. 43 in connection with 15 of the Spanish Constitution [CE]), in the sense that we don't need to consider exogenous principles to a normative constitution as the Spanish one, such as the known and cited principle of necessity, under the aphorism Salus publica suprema lex esto. We find in the constitutional text itself the attribution to the public powers of the competence to organize and protect public health (art. 43 CE), therefore public powers are able to regulate by law the duties and obligations of citizens «in cases of serious risk, catastrophe or public calamity» (art. 32(4) CE). Moreover, we study the Spanish legal framework on public health, including the General Sanitary Law, the General Public Health Law, with a special attention to the art. 3 of Organic Law 3/1986, 14 April, on special measures in the field of public health, which attributes to the health authorities a huge competence to be able to adopt, in a situation of sanitary crisis such as the current one, decisions that, with the necessary guarantees, suppose a restriction or limitation of rights, including fundamental ones as in the case of confinement. These limitations on fundamental rights require a judicial authorization or ratification. However, we also consider the convenience of a new organic law to regulate in detail the procedure and the legal guarantees to carry out the adoption and development of these measures.