THE RIGHT TO LIBERTY AND DETENTION OF PEOPLE WITH INFECTIOUS DISEASES

In the middle of the 20th century with the appearance of antibiotics, scientists sighed with the relief that they have put an end to death and suffering from infectious diseases. However, not more than two decades have passed, and microbes again started to demonstrate their tremendous ability to adapt, survive and challenge. On average, as the World Health Organization shows, infectious diseases kill about one third of 52 million people who die every year. Nevertheless, no more than six infectious diseases – pneumonia, tuberculosis, diarrhoeal diseases, malaria, measles and HIV/AIRDS – account for half of all deaths.

These tremendous figures flared mutual interest of fighting the infectious diseases in almost all the countries. Another goal, besides this, is set to fight and protect the rights of infected people. Among them the following fundamental ones can be mentioned:

First of all, it is the right to treatment. Although, the Constitution does not speak loudly about the right to treatment and there is no allusion to hospitalization and compulsory treatment, it was Morton Birnbaum who suggested the adoption of “the right to medical treatment”. Yet, his suggestion was adopted after the first precedent.

The right to treatment is another right that is closely connected with the right to life. The concept that the law shall protect everyone’s right to life prohibits the state not only to refrain from the intentional deprivation of life, but also to take appropriate steps to protect life. Besides, one can also see the interplay between the right to life enshrined in Article 2 of the European Convention on Human Rights (ECHR) and the prohibition on torture and inhuman or degrading treatment contained in Article 3.

Another important right is the right to non-discrimination (ECHR, 14). It is widely believed that people infected with AIDS, tuberculosis and other infectious diseases pose a threat to others with whom they share the room. Fear and ignorance about the spread of HIV infection, for example, often lead to the total discrimination of HIV infected people, which is primarily expressed in their physical and social isolation. The solution is often seen in a compulsory medical examination and blood test. However, the starting point in this case ought to be respect for human dignity, respect for the opinion of the doctor and duty to remain confidential…

The next one of the most fundamental rights of person on which all other rights are built up is the right to liberty. Being enshrined in Article 5 of the ECHR, it states “everyone has the right to liberty and security of person”. Remarkably, point 1 of Article 5 specifies all the cases when person gets deprived of his liberty:

1. The lawful detention of a person after conviction by a competent court;

2. The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;

3. The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after done so;

4. The detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority.

5. The lawful detention of persons for the prevention of spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

6. The lawful arrest or detention of a person to prevent his affecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Here are the 5 points of lawful deprivation of one’s right to liberty. With this knowledge bearing in mind, one can remember the case of Enhorn v. Sweden which deals with Article 5 (1) of the ECHR and Art 5(1)(e) in particular. The case circumstances are as follows.

The applicant, who was homosexual, discovered that he was infected with the HIV virus and that he had transmitted the virus to another man. In 1994 he was required by a county medical officer to take certain steps to prevent him from spreading the HIV infection and to attend medical appointments. When Enhorn failed to observe these instructions, an order was obtained for his compulsory isolation in a hospital for up to three months. The applicant filed his complaint to the Court of Appeal. The latter rejected it, and the confinement was extended several times. Enhorn absconded from hospital on four occasions and lived in the community for varying periods. In 2002 the medical officer decided that there were no grounds for his continued isolation in hospital. The Strasbourg Court emphasized that, by Article 5 (1), any deprivation of liberty must have been “in accordance with a procedure prescribed by law”.

The first point we should turn attention to is the “lawfulness” of detention. The detention of an individual is a very serious measure and can be justified when other measures have been considered and found insufficient. Yet, the detention was in accordance with Swedish law for the County Court had carefully examined the instructions given to the applicant and concluded that the requirements of the Infectious Diseases Act 1988 were fulfilled.

Taking these points into account, the Court finds that the essential criteria evaluating the “lawfulness” of the detention of a person “for the prevention of the spreading of infectious diseases” are whether the spreading of the infectious disease is dangerous to public health and society; and whether detention of the infected person is the last resort in order to prevent from spreading the disease. Let us consider each of them:

The first criterion is undoubtedly fulfilled for the HIV virus was and is dangerous for public health and society. As to the detention, in a judgment of 1995, the County Court ordered that Enhorn be kept in compulsory isolation for up to three months, and then orders to prolong his deprivation were continuously issued every six months until December 2001. Accordingly, the order to deprive the applicant of his liberty was in force for almost seven years. Admittedly, since the applicant absconded several time, his actual deprivation of liberty lasted almost one and a half year together.

The Government submitted that voluntary measures had been attempted in vain. The particular circumstances of the case are the applicant’s personality and behavior. As one can see from the case, the applicant, as described by physicians and psychiatrists, had preference for teenage boys (the fact that he had transmitted the HIV virus to a young boy). Thus the Government found that the involuntary placement of the applicant in hospital had been proportionate to the purpose of measure, namely to prevent him from spreading the infectious disease.

It is undisputed that the applicant failed to comply with the instructions of the county medical officer. It stated that Enhorn should visit his consulting physician again and keep setting up appointments.

As provided in the original case, the applicant was forbidden from having sexual intercourse without having informed his partner about his HIV infection, Also, he was to use a condom. At the same time the Court notes that there is no evidence that during that period applicant transmitted the HIV virus to anybody, or had sexual intercourse without first informing his partner about his HIV infection, or that he did not use a condom, or that he had any sexual relations at all. It is true that the applicant infected the 19-year-old-man with whom he had first had sexual contact in 1990. This was in 1994, when the applicant himself discovered his infection. However, another point to mention, there is no indication that the applicant transmitted the HIV virus to the young man as a result of intent or gross neglect, which in many states, including Sweden, would have been considered a criminal offence.

Taking the above mentioned into consideration, one can say that the violation of Article 5 (1) took place. On the one hand, allowing a person to infect healthy individuals is a grave danger to public health, to the right of individuals to health, in particular. On the other hand, it should again be emphasized that liberty is and should be the rule. Sure, you will agree with me, that systematic confinement of persons capable of spreading infectious diseases would turn them into outcasts; this would be an unacceptable step backwards in terms of human rights, which are founded on the principle of freedom and responsibility of the human being.

As the last touches, two contradictory weaknesses may be mentioned. Firstly, while being in isolation, the applicant absconded several times, apparently without any great effort being made to find him. If he was that dangerous that his confinement had to be prolonged, why was he left at liberty with the risk of transmitting AIDS? Secondly, it appears from the evidence that Mr. Enhorn did not actually infect anyone, or indeed have any sexual relations. And if there was no established risk, why was the order for his continued isolation extended for a further two and a half years?

This very case study brings a bright example of how important it is to recognize and protect the rights of people with infectious diseases for we will not follow the famous joke of the famous American journalist, who said that “the ideal way to get rid of any infectious disease is to shoot instantly every person who comes down with it”, for “no man is above the law and no man below it”.

Bibliography

1. Human rights handbooks, No5. Monica Macovei

2. Philip Leach (2011). Taking a case to the European Court of Human Rights. Oxford

3. Mark W. Janis (2008). European Human Rights Law Text and Materials.. Oxford

4. Hayers, C. Neenan . Impact of the European Convention of Human Rights on medical law.

5. The World Health Report/2004