Justice files two complaints about deaths in nursing homes without mentioning the protocol that prevented referrals

The Court of First Instance and instruction number 5 of Leganes has filed two complaints from relatives of those who died in residences in Leganes in the first wave of the pandemic. The order argues that it is the pandemic that made the 29 people whose relatives took legal action sick and “not the actions of the directors of the residences or of the defendants’ counselors”.

The complaint was directed against the management teams of several residences – DomusVi, Vitalia or Aralia – for the crimes of reckless homicide, reckless injury, omission of the duty of care, degrading treatment and prevarication. The three political charges that involved the criminal action also at first, were excluded from this procedure by the Provincial Court of Madrid, legal sources have pointed out.

The Audiencia of Madrid, in November 2020, in the order that confirmed the inadmissibility of the complaint by the court of Leganés, recalled that for its instruction and prosecution is competent the Supreme Court and the Civil and Criminal Chamber of the TSJ of Madrid, and not the court of instruction.

Now, the judge dismisses in an order, to which Europa Press had access, the commission of the crimes of reckless homicide and reckless injury “in each and every one of the cases, since it is that disease which produced the harmful result, drastic when it ended in death, and less painful when it came to people who managed to recover.

“It is the pandemic that stalks us, which made these people sick, and not the actions of the directors of the residences or the defendants counselors of the Community of Madrid, in terms of the actions that could have been carried out from an administrative and / or governmental point of view to try to control and minimize its impact, “says the judge.

The order mentions 22 resolutions that the magistrate has analyzed, but omits from the list the modification of the protocol that limited referral to hospitals to patients if they were highly dependent or had cognitive impairment, as published InfoLibre. The judge notes in the order that if the protocols of the Community of Madrid were or were not adequate is a “foreign question” to the staff of the residences.

As for the omission of the duty to help, the magistrate recalls that at the time of the facts contained in the complaint “the situation was of absolute collapse of the health system, treatment of a new and unknown disease, with tools not yet proven and whose effectiveness was unknown and massive contagion of health and care staff of the residences, who endangered their own lives to try to save the largest possible number of people”.

He insists, despite the fact that there were protocols to prevent the transfer of elderly people from nursing homes to hospitals, that this situation cannot be ignored when analyzing this type of crime, since what is not required of a person is to provide assistance that is not in their hands and that far exceeds what is reasonable and morally required”.

With regard to the political defendants, the resolution abounds in the same idea by clarifying that “even though it is insisted in the complaint that they did not act effectively or on time, we cannot forget that the lack of protection material was a lack at the state level, that it had to be purchased urgently from other countries, that the market was collapsed and that the Spanish state did not guarantee the provision” of epis.

As for the crime of degrading treatment “there is no indication of the intent required by the Penal Code, when we talk about physical harm or death of people” in this case. Nor does the magistrate found in the complaint indications that point to the crime of prevarication to keep the case open at this time only with respect to those responsible for the residences of the elderly, who are neither authority nor public officials.

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