INTERIGHTS Bulletin

196 INTERIGHTS Bulletin
Volume 16 Number 4 2011
the legitimate objective of controlling
the spread of highly infectious,
difficult to treat and fatal diseases. 7
The question will be whether the
procedure utilised to ensure forcible
isolation of persons infected with
DRTB is necessary and a proportionate
limitation of the rights to liberty and
freedom of movement in Kenya and
whether the limitation includes
sufficient safeguards to prevent abuse.
WHO Standards on Coercive Isolation
of TB Carriers Only as a Last Resort
While the World Health Organization
(WHO) advises that XDRTB patients
should be isolated until they are no
longer contagious, 8 it has also
established guidelines on the
treatment of DRTB that emphasise
that coercive isolation and detention
must only be used as a last resort
where other methods of treatment and
control have failed. 9 The WHO notes
that treatment at home is usually
perfectly safe and that well-counselled
patients are unlikely to seriously
deviate from their treatment regimes.
The WHO thus recommends that:
…community-based care should always
be considered before isolation or
detention is contemplated. Countries
and TB programmes should put in
place services and support structures
to ensure that community-based care
is as widely available as possible. 10
Indeed it has been shown that
community-based care will in most
circumstances be the appropriate
method of treatment for all forms of
TB:
Ambulatory and community-based
treatment models for MDR- and XDR-
TB have been successfully
implemented in a number of settings
— ranging from Lesotho to Latvia,
Estonia, Georgia, Peru, the
Philippines, Nepal, and the Russian
Federation — without having to resort
to extraordinary measures that infringe
on a patient’s human rights. 11
In most circumstances home-based
care would be the least restrictive and
most effective measure and therefore
forced isolation would be inappro-
priate (neither necessary nor
proportionate). The WHO does,
however, accept that in certain very
limited circumstances it may be
necessary to forcibly isolate TB
patients 12 and sets out the following as
circumstances in which isolation and
detention of TB sufferers can be
considered an appropriate public
health response:
Isolation or detention should be
limited to exceptional circumstances
when an individual:
• is known to be contagious, refuses
treatment, and all reasonable
measures to ensure adherence have
been attempted and proven
unsuccessful;
• is known to be contagious, has agreed
to ambulatory treatment, but lacks the
capacity to institute infection control in
the home;
• is highly likely to be contagious
(based on symptoms and evidence of
epidemiological risk factors) but
refuses to undergo assessment of
his/her infectious status. 13
The first scenario, where a TB patient
refuses treatment, is the appropriate
one for consideration within the scope
of the Kenyan situation. Where TB
patients have refused to adhere to
treatment regimens it may be
acceptable to isolate them. However,
this would not be appropriate under
the WHO guidelines if other less
invasive efforts have not been tried.
The first would necessarily include
counselling and attempts at
community-based care (see below
particularly with respect to the
experience in Australia). The WHO’s
guidance on ethics also notes that
before a detention order is made the
patient should be warned that his
behaviour might necessitate
detention. 14
Even where the detention of TB
patients is considered necessary the
WHO advises that it should only
happen if health authorities:
can ensure it is done in a transparent
and accountable manner. If it can be
proved, through evidence-based
analysis, that forced isolation is
temporarily required, patients must be
provided with the high-quality care that
includes, among other rights, free
access to secondline drugs, laboratory
support including effective DST and
social support, and be treated with
respect and dignity. Patients should be
informed clearly, in their language, of
the decision and its details, and of their
rights and responsibilities, as outlined
in the Patients’ Charter, accompanied
by a peer supporter and/or family
member. 15
Comparative Responses to TB
Isolation
In the United Kingdom (UK) the
legislature allows the local authority to
apply to a justice of the peace (a lay
magistrate with legal advice) for an
order allowing the forced isolation of
persons suffering from notifiable
diseases, which include TB patients.
This power is contained in ss 37 and 38
of the Public Health (Control of
Disease) Act 1984. The powers granted
to the justice of the peace allow him to
make the determination that an
infectious person be taken to a hospital
ex parte. However, the powers are
restricted to situations where other
precautions to prevent infection
cannot be taken, or are not being
taken, where there is a serious risk of
infection to other persons, and there is
accommodation available in an
appropriate hospital. The justice of the
peace may also order, again ex parte,
that a person suffering from TB be
continued to be detained in hospital if
he/she is satisfied that his/her
accommodation outside the hospital
would not be conducive to preventing
the spread of the infectious disease.
This order may be repeatedly extended
by any appropriate justice of the peace.
A person who breaches such an order
may be subjected to a fine and
returned to the hospital but may not be
subjected to a term of imprisonment
under the terms of the section.
There are a number of positive aspects
of this legal regime: the order is made
by a magistrates’ court on application