The exercise of public health powers in cases of infectious disease: Human rights implications

Medical Law Review

Volumn 14, Issue 1, 2006, Pages 132-143

  Martin, Robyn ^a  

^a UNIVERSITY OF HERTFORDSHIRE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

ARTICLE; COMMUNICABLE DISEASE; DISEASE TRANSMISSION; HUMAN; HUMAN IMMUNODEFICIENCY VIRUS INFECTION; HUMAN RIGHTS; LEGAL ASPECT; MALE; MIDDLE AGED; NATIONAL HEALTH SERVICE; PUBLIC HEALTH SERVICE; SWEDEN;

COMMUNICABLE DISEASES; HIV INFECTIONS; HIV SEROPOSITIVITY; HUMAN RIGHTS; HUMANS; MALE; MIDDLE AGED; PUBLIC HEALTH ADMINISTRATION; STATE MEDICINE; SWEDEN;

EID: 33644967510     PISSN: 09670742     EISSN: 14643790     Source Type: Journal    
DOI: 10.1093/medlaw/fwi038     Document Type: Article

References (41)

1. Enhorn v. Sweden [2005] E.C.H.R. 56529/00, para. 41.
2. R. Coker and R. Martin 'Public Health Powers and Infectious Disease: A European Study', paper given at the Hart Workshop, Institute of Advanced Legal Studies, June 2005, forthcoming.
3. Quarantine involves the restriction of the activities of healthy persons who have been exposed to communicable disease, while isolation and detention involve the separation of an infected person to prevent spread of disease. See L. Gostin, Public Health Law: Power, Duty and Restraint (University of California Press 2000).
4. Supra, n. 1, para. 9.
5. Supra, n. 1, para. 19.
6. Chahal v. U.K. [1996] E.C.H.R. 22414/93.
7. See e.g. Winterwerp v. Netherlands [1979] E.C.H.R 6301/73.
8. See e.g. Witold v. Poland [2000] E.C.H.R. 26629/95.
9. Similar powers east in Northern Ireland (the Public Health (Ireland) Act 1878, the Public Health (Northern Ireland) Act 1967 and the Health and Personal Social Services and Public Health (Northern Ireland) Act 1986) and Scotland (Public Health (Scotland) Act 1897, the Public Health (Infectious Diseases) (Scotland) Regulations 1975, the Infectious Diseases (Notification) Act 1889 and the Public I Iealth (Notification of Infectious Disease) (Scotland) Act 1988).
10. The Civil Contingencies Act 2004 enables regulations to be made to provide powers in 'emergencies' and an emergency is defined to include events that threaten harm to human health. No such regulations have been made at time of writing.
11. Note, however, that under Scottish legislation such powers can apply to all infectious diseases.
12. There are no detention powers in relation to emerging diseases such as SARS and avian flu, although there are powers under section 16 of the 1984 Act to direct that other diseases be notifiable and, thus, subject to specified public health powers.
13. The Schedule to the Infectious Disease Regulations 1988 lists which powers of the 1984 Act apply to which diseases.
14. See A. Harris and R. Martin, 'The Exercise of Public Health Powers in an Era of Human Rights: The Particular Problem of Tuberculosis' (2004) 118 Public Health 312.
15. For example, it is an offence under the Act if you are suffering from some notifiable diseases to return books to a library or to take washing to a laundry, although contemporary science does not support risk of disease contagion from such activities.
16. There is now little such specialist hospital accommodation in the United Kingdom.
17. See e.g. R. Coker, 'Tuberculosis, Non-compliance and Detention for the Public Health' (2000) 26 Journal of Medical Ethics 157.
18. See also K. Sepkowitz 'How Contagious is Tuberculosis?' (1996) 23 Clinical Infectious Diseases 954.
19. PHLS Communicable Disease Surveillance Centre, 12 CDR Weekly No. 42, 17 October 2002.
20. Section 5 Public Health (Infectious Disease) Regulations 1988 states that detention may also take place where the justice of the peace is satisfied that on leaving hospital, proper precautions to prevent spread of disease would not be taken by the infected person in his lodgings or in any other place he might be expected to go.
21. Under section 38 the justice of the peace may 'direct detention for a period specified in the order' and 'any justice of the peace......may extend a period so specified as often as it appears to him to be necessary to do so'.
22. [1998] 3 All E.R. 673.
23. Per Judge L.J.
24. R (on the application of Beeson) v .Dorset C.C. [2002] H.R.L.R. 15.
25. This decision was reversed in part at [2003] H.R.L.R. 11 without settling this point.
26. There have been several serious outbreaks of Isoniazid tuberculosis in recent years, including an outbreak of over 100 persons in North London: A. Davies, M. Ruddy and F. Neely, 'Outbreak of Isoniazid Resistant Tuberculosis in North London 1999-2002' Confidential Report for Incident Control Committee, December 2002.
27. S. da Lomba and R. Martin, 'Public Health Powers in Relation to Tuberculosis in England and France: A Comparison of Approaches' (2004) 6 Medical Law International 117.
28. In 2002, a patient at a hospital in Kent was found to have contracted multidrug-resistant tuberculosis from a patient compulsorily detained in the same hospital: 12 CDR Weekly No. 42, 17 October 2002.
29. See K. Calman and G. Royston, 'Risk Language and Dialects' (1997) 315 British Medical Journal 939.
30. See e.g. World Health Organization 'Electromagnetic Fields and Public Health Cautionary Policies' at www.who.int/docstore/peh-emf/publications/ facts∥ess/EMF-Precaution.htm.
31. Section 69(2)(a)-(d).
32. For discussion on the assessment of risk in Australian legislation, see C. Reynolds, Public Health: Law and Regulation (Federation Press 2004).
33. See e.g. A. Harris and R. Martin, supra, n. 14,
34. and R. Coker, supra, n. 17.
35. In the Mail on Sunday, 15 May 2005, Dr Philip Monk, a communicable disease specialist in Leicestershire, commenting on a case in which 12 people were thought to have contracted tuberculosis from a person with infectious tuberculosis who had refused treatment, said, 'We cannot adequately protect people from infectious diseases......This case illustrates the failures of the current public health laws to perfection. There is an urgent need to review them.' He made similar comments in the New Scientist, 14 May 2005.
36. The Acheson Report, Public Health in England: The Report of the Committee of Inquiry into the Future Development of the Public Health Function (HMSO 1988)
37. The Department of Health, Review of Law on Infectious Disease Control: Consultation Document (1989)
38. Chief Medical Officer, On the State of the Public Health: The Annual Report of the Chief Medical Officer for the Year 1997 (Department of Health 1998)
39. Chief Medical Officer, Getting Ahead of the Curve: A Strategy for Combating Infectious Diseases (Department of Health 2002).
40. Such as New Zealand and Australia.
41. Note that after considerable debate, SARS was not made a notifiable disease under UK legislation, in part because without any quarantine powers, there was little point in bringing SARS under the provisions of the Act.