INTERIGHTS Bulletin

198 INTERIGHTS Bulletin
Volume 16 Number 4 2011
anything, the government has to do to
facilitate compliance. 21
Another concern in the US has been
the lack of an automatic review system.
Unless a patient decides to ask for a
court hearing the detention order will
be implemented without judicial
oversight. Where deprivation of liberty
of the most vulnerable is concerned it
is important that there be an automatic
review of the decision. 22 Of more
concern is the fact that in California as
late as 1999 TB patients were being
tried and detained in prisons. 23
In Ireland s 38 of the Public Health Act
of 1947, as amended, allows two
authorised medical practitioners to
order the detention of TB patients if
‘such person is a probable source of
infection with an infectious disease
and that his isolation is necessary as a
safeguard against the spread of
infection, and that such person cannot
be effectively isolated in his home.’
The section allows an appeal to the
Minster of Health and Article 40.4.2 of
the Irish Constitution entitles all
persons in detention to apply at any
time to the High Court for a review of
their detention. Section 38 has serious
gaps in that it allows medical
personnel, without court supervision,
to order detention, there is no
automatic and periodic review of the
detention and there is no statutory
provision of legal aid. However the
High Court has upheld s 38, despite
criticising it for a lack of internal
safeguards and the manner in which
the particular case was managed by the
medical staff, based on the
presumption of constitutionality,
holding that the hospital and medical
practitioners in charge should have
developed a rights-based plan to
ensure that the patient’s case was
reviewed periodically (both in terms of
the legality of her detention and her
continued infectiousness). 24 The
judge also emphasised other methods
of enforcing the patient’s rights, which
in this case included the ability to
petition the High Court under Article
20.4.2 of the Constitution. Therefore,
although it is desirable that safeguards
be contained in legislation (and it can
be argued that the judge in this case
was excessively deferential to the
legislature) the decisive question will
be whether they exist at all, whether in
legislation, policy or administrative
action.
In South Africa ‘authorities may detain
an individual suffering from an
infectious disease until the disease
ceases to present a public health risk;
draft government policy guidelines call
for the isolation of all MDR- and XDR-
TB patients in a specialist facility for a
minimum of six months.’ 25 Unlike in
the UK, US and Australia, where
isolation is utilised as a last resort and
where modern and up-to-date
treatment is available, thousands of
patients in South Africa are detained in
specialised TB hospitals, where many
die:
(I)ndividuals with drug-resistant TB
(are isolated) for as long as two years,
often in conditions closely resembling
prisons. In other locations, XDR-TB
patients are discharged after six
months to “make room for new
patients.” In both cases, no assessment
of infectiousness is made, and
throughout their confinement, most
patients do not have access to many
second-line drugs, resulting in almost
universal mortality. In March 2009,
the AIDS Law Project reported that
approximately 1,700 people, including
children, were then detained in TB
isolation facilities, many of them in
substandard conditions that violated
South African constitutional rights and
national health legislation. 26
Importantly, many of the safeguards
guaranteed under international law are
ignored under South African
legislation: the determination to
forcibly isolate a patient is made by a
health official, who is not required to
consider whether less intrusive
methods would be more appropriate;
there are insufficient procedures to
allow judicial review of the decision to
detain (there is no automatic review
and access to legal representation is
limited); most people forcibly isolated
are not refusing to take treatment
(meaning that isolation is not
necessary to ensure compliance); most
are only isolated fourteen weeks after
first being tested (allowing them to
spread the disease before they are
isolated) and the process is
discriminatory as it only applies to
individuals accessing the public health
system since patients who can afford
private doctors are treated at home. In
addition, when considering whether
the limitation is proportionate, a
determining factor may be that, ‘public
health experts note that holding MDRand
XDR-TB patients in overcrowded
hospitals with inadequate ventilation
increases the risk of nosocomial
disease transmission and crossinfection.’
27 In these circumstances it
would be difficult to defend the South
African programme of detaining TB
patients in overcrowded hospitals as a
legitimate limitation to the right to
liberty under the South African
Constitution and international and
regional human rights law.
General Principles From International
Practice
The comparison of various approaches
towards coercive isolation for patients
with MDRTB indicates that there are
some basic conditions for the legality
of the process. Coercive isolation must
always be a last resort after other
measures, such as directly observed
therapy, have been attempted. Social
support, including economic
assistance and counselling, should be
provided to patients who should be
warned of the possible ramifications of
default before any action is taken. The
process itself must ensure protection
of fair trial rights with either
administrative or judicial supervision
of the decision to detain and on-going
review of the detention. Finally
patients should be detained in
hospitals or other facilities for their
treatment and not in open prison with
convicted criminals. While not all
these principles are fully met in each of
the countries studied, the procedure
adopted in each country, including to
some extent South Africa,
demonstrates an attempt to balance
the rights of the individual patient with