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Covid-19: To quarantine or not to quarantine citizens
24 April 2020 00:00 by Tebogo Malatji, Bonang Masia, Samuel Masombuka
- Covid-19 Resource Centre
- Covid-19/Public Law
- Constitutional Law
- Bill of Rights
Covid-19: To quarantine or not to quarantine citizens?
Desperate times call for desperate measures, as this analysis of the Regulations under which citizens, including medical doctors in some instances, can be compelled to be quarantined as distinct from being isolated, explains.
Written by Tebogo Malatji, Managing Director, Bonang Lorato Masia, Director, and Samuel Masombuka, Associate, of Malatji & Co. Attorneys, for LexisNexis South Africa.
[Durban, 24 April 2020]
Several media articles have reported that a man from Johannesburg, specifically, Alexandra travelled to Limpopo Province after having been instructed to remain in self-isolation whilst awaiting the results of his Covid-19 test. The results subsequently revealed that the man tested positive for Covid-19. It is under these circumstances that we must consider whether citizens, including medical doctors in some instances, can be compelled to be quarantined. Medical doctors are specifically mentioned for two reasons: (i) ongoing reporting about two medical doctors in Limpopo who were forcibly moved into quarantine at a health facility, and (ii) medical doctors are professionals who are presumed to possess the necessary knowledge and skills for an ideal case of self-isolation.
From the outset it must be conceded that drastic measures are necessary to curb the spread of Covid-19, especially, in a country like South Africa. However, the drastic measures must be taken with firm cognizance of the fundamental Constitutional rights of citizens, including the right to human dignity (section 10), freedom and security of the person (section 12), the right to privacy (section 14), freedom of religion (section 15), the right to assembly, picket and petition (section 17), freedom of movement and residence (section 21), freedom of trade, occupation and profession (section 22) and the right to access to courts (section 34).
Importantly, these fundamental rights contained in the Bill of Rights are not absolute, meaning that these rights may be limited under certain circumstances, arguably, the Covid-19 pandemic is one such circumstance. Further importantly, the limiting of rights does not mean that the right is extinguished and/or ceases to exist. What it means is merely that the full operation of the applicable right is restricted to the extent necessary, in an open, fair and democratic society.
Regulation 4 and 5 of the Regulations is one of the mechanisms adopted by Government to limit some of the constitutional rights of citizens. They provide that no person who has been confirmed or is suspected of having contracted Covid-19 may refuse consent to submit themselves to an examination; to being admitted in a health establishment or a quarantine or isolation site; and/or to mandatory prophylaxis, or treatment. If they refuse, then they must be placed in isolation or quarantine for a period of 48 hours pending an order being granted by a Magistrate forcing such a person to go to such site of isolation, quarantined facility, or medical examination.
At this juncture it is important to note the difference drawn by the Regulations between isolation on the one hand, and quarantine on the other hand. Isolation relates specifically to cases where sick people with a contagious disease are separated from people who are not sick. Quarantine on the other hand, separates and restricts the movement of people who were exposed to a contagious disease to see if they become sick. Evidently, quarantine is more limiting of an individual’s rights than isolation or self-isolation.
These Regulations, however, are not clear on whether every case that tests positive must of necessity be admitted in a health establishment or a quarantine or isolation site. The Regulations relating to Surveillance and the Control of Notifiable Medical Conditions published under the National Health Act, 2003, provide clarity (“The Surveillance Regulations”)1. Of particular importance is regulation 14(1) which essentially provides that: “… guidelines on how to diagnose, manage and prevent the spread of notifiable medical conditions issued by the national department must be followed in implementing the appropriate medical examination, prophylaxis, counselling, treatment, isolation or quarantine measures.”
In accordance with regulation 14(1), the National Institute for Communicable Diseases (“NICD”) issued the Guidelines for the Clinical Management of Suspected or Confirmed COVID-19 disease (“the Guidelines”) on 27 March 2020.
The Guidelines make a distinction on the management of suspected and confirmed COVID-19 cases. For instance, in respect of suspected cases, where a patient presents as being medically well, or who is assessed as having only mild disease, such a patient may be managed at home while awaiting test results. In the case of confirmed cases, the Guidelines provide that where patients present with mild symptoms, they may similarly “be considered for management at home, provided they are able to safely self-isolate and are not at risk of developing severe disease.” Evidently, regulation 14(1) read in conjunction with the guidelines strongly indicates that forceful isolation or quarantine is a measure of last resort and reserved for those cases presenting as moderate or severe.
Moreover, regulation 14 of the Surveillance Regulations provides in relevant parts as follows:
“(4) Following the medical examination, the health care provider may prescribe prophylaxis, treatment or implement isolation or quarantine procedures, if deemed necessary.
(5) The need, nature and extent of the intervention must be assessed, based on the nature of the public health risk and the particular circumstances of the individual.” (our emphasis)
It should be noted that the Surveillance Regulations create a criminal offence for non-compliance with the provisions of these Regulations. On conviction, one could be imprisoned for a maximum period of 10 (ten) years.
From the above it is clear that being confined to a health establishment or a quarantine or isolation site is not mandatory in the case of positive cases, save if the health care provider makes the assessment that such an intervention is necessary under the circumstances, or if there is a court order obtained to that effect. Accordingly, where the healthcare provider is of the considered view that a person is reasonably capable of self-isolation in order to curb the spread of the virus, Regulation 4 read together with Regulation 14 of the Surveillance Regulations will not find application. The citizen from Alexandra represents a classic case where forced isolation or isolation was indicated under the Regulations. He failed to adhere thereto and is said to have been arrested and may face imprisonment of up to 10 (ten) years if convicted in terms of the Surveillance Regulations.
It seems to us that in the case of the two doctors who were forcibly quarantined, this measure may have been unnecessary given that medical doctors are professionals presumed to possess the necessary knowledge and skills to curb the spread to the virus. They could have thus been considered for management at home, depending on the outcome of their assessment. This interpretation finds favour with the government’s already constrained resources particularly in the public health sector. The two doctors are said to have been quarantined on the basis of an interim court order. In this regard, the matter is still before the courts and should be resolved there by the affected parties.
 Regulations relating to the surveillance and the control of notifiable medical conditions (Government Gazette No. 41330)/14
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