COVID-19: The legal and public health sides of forced isolation
President Cyril Ramaphosa has said that people who test positive for the COVID-19 virus who have no symptoms, or only mild symptoms, may self-isolate at home provided they can do so safely. This is also what is recommended in guidelines from the National Institutes of Communicable Disease (NICD).
But two of South Africa’s provinces have recently announced that they are taking a different approach. KwaZulu-Natal (KZN) and Limpopo have decided that all persons who test positive for the virus will be isolated in a state facility, making self-isolation at home no longer an option, even if people can safely do so.
Sibongile Tshabalala, National Chairperson of the Treatment Action Campaign (TAC), says that the organisation is against the forced isolation of persons with COVID-19. She says that even though the government was trying to do the right thing by isolating people, forcing isolation was not right.
“To take a person without his or her consent is a violation of human rights. That’s where we feel like people will not go for testing because they fear they will be forced into isolation. The only person you have the right to take without his or her consent is someone who has committed a crime, and testing positive with COVID-19 is not a crime,” she says.
Despite the President’s comments and the NICD guidelines, regulations released in terms of the Disaster Management Act appear to allow provinces to force people to isolate in state facilities.
Regulation 4 states that no person who tests positive for the virus may refuse admission to an isolation or quarantine site. Adding to this, Regulation 5 states that if someone refuses, the province can get a court order forcing them to go.
Whether or not these state facilities should be reserved for those who cannot safely self-isolate at home, is not explicitly outlined in the Regulations. The only caveat is in Regulation 11D; that the state must identify “temporary sites for quarantine and self-isolation that meet the necessary hygiene standards for people who cannot isolate or quarantine in their homes”.
Unpacking these Regulations, Attorney Tess Peacock, Executive Director of the Equality Collective that is part of the C19 People’s Coalition, says: “If one reads Regulation 4 and 5 in isolation, then one – it would seem that no person can refuse to be admitted into a quarantine or self-isolation facility if they have contracted COVID-19, or are suspected of having contracted COVID-19, or have been in contact with a person who is a carrier of COVID-19 and two, if a person refuses to go then the state can seek an order from a Magistrate Court to force them to go.”
However, Peacock adds that Regulations should never be read in isolation of each other. “Regulation 11D seems to make it clear that these temporary quarantine and self-isolation facilities are identified and set up for people who cannot self-isolate or quarantine at home,” she says.
“The purpose behind these provisions is to ensure that people, where required, have a place to isolate and quarantine. It does not seem to me that the purpose is to create central sites of quarantine and isolation regardless of need,” says Peacock.
She says that this would be a waste of state resources. “I do, however, think that the State is entitled to be satisfied that self-isolation and quarantine at home is actually (or objectively) possible. If the state is not satisfied, then I think they have the powers to admit someone to such a temporary facility,” says Peacock.
Tshabalala agrees. “A person needs to be given a chance and evaluated by the state if they are able to be isolated by the public or if they are able to isolate themselves,” says Tshabalala. “We understand that [for] people in informal settlements and [similar areas], it might be difficult to self-isolate, in that case, a person needs to be mentally prepared.”
Previously GroundUp reported that the Legal Resources Centre (LRC) wrote to COGTA Minister Nkosazana Dlamini-Zuma asking for clarification over the restrictive nature of the Regulations, particularly Regulation 4(1) where a person refusing an examination could be detained for 48 hours. The LRC submitted that isolation facilities should only be used for homeless people, or those in similar circumstances.
The LRC, acting on behalf of the Flat Dwellers Movement, said that the current measures were unconstitutional and unlawful in terms of the present Regulations. On Monday morning Sharita Samuel, Director of the LRC’s Durban office, told Spotlight that the LRC had received updates to the regulations over the weekend. Samuel said they will look at the new information and assess what their clients will need.
Public health consequences
Dr Kerrin Begg, a Public Health Medicine Specialist from Stellenbosch University, says that measures adopted by provinces like KZN and Limpopo should only be a last resort. “Essentially, by obliging people to go into quarantine and isolation facilities, forcing people to do it en masse is essentially [like] we are treating people like sheep that can’t think for themselves and can’t make decisions,” says Begg. “It’s a particular challenge, whilst there are no easy answers, I don’t think that obligatory quarantining and isolation is the way to go.”
Begg adds that moving people unnecessarily to isolation facilities is a huge transmission risk. “As soon as you move, you give the virus legs to move to others,” says Begg. “We really want people to stay put as much as possible.”
Begg says that the state’s responsibility was to provide these facilities for people who could not self-isolate or quarantine at home. “The practicalities are many people cannot self-isolate or self-quarantine because of the nature of their living arrangements and that is an indictment on our society – that we have homes that don’t have their own running water, that multiple people are living in one room together and need to share ablutions with multiple other families,” she says.
“We are in a state of limited resources. We really don’t need to be making our lives more difficult by insisting that people who can quite adequately self-isolate or self-quarantine, go to facilities which can be better used for people who really need them.”
As a result of stricter measures, Begg says that people could become afraid and as a result, testing could be driven into the ground.
“This is really not a nice disease to get,” she says. “It’s scary and we really need to be dealing with people with the utmost compassion and humanity and not be coming at it with a very punitive message and approach because people will refuse to be tested.”
Tshabalala raises similar concerns. She says that these measures echoed the ways patients with MDR-TB were treated in the past, by forcing them into isolated treatment facilities. “What were we learning from that era? People were running away from these isolation facilities and hospitals,” she said. “If we are going back to that era it would mean more people will run away from testing, and if a person runs away from testing, you can think that how many people will be infected with COVID-19.”
Just over a week ago, KZN Premier Sihle Zikalala announced that the province was cracking down on lockdown regulations which included enforcing that all persons with COVID-19 will now be taken to state isolation facilities. This came as the province’s case numbers continued to rise dramatically in areas like eThekwini.
Zikalala said in a briefing that those in self-isolation were still moving around and infecting other people. He said that new measures meant that once a person tested positive, they would be taken to a separate facility and only released once they were fully recovered.
The province’s new strategy stems from national efforts to control the outbreak in metro areas like eThekwini. MEC for Health Nomagugu Simelane-Zulu said in the same briefing that unless they deal with the issues in eThekwini, the whole province would continue to have infections.
Further questions were sent to Zikalala, but no response was received.
In Limpopo (LP), policy dictates that any person who tests positive for COVID-19 in the province will be isolated in a state facility, leaving no option of self-isolation.
Earlier this month, two doctors were allegedly forced into an isolation facility in the province despite already self-isolating at home. Limpopo Head of Department, Thokozani Mhlongo, reportedly said that when the doctors tested positive they must follow suit like others in the province, and be isolated in a designated facility.
The doctors were moved to the facility after the provincial Health Department presented them with a court order. The South African Medical Association (SAMA) responded to the incident arguing that the doctors should have been able to remain in self-isolation, and that moving them to a facility could aggravate their symptoms. The two doctors were released following legal intervention by SAMA, and testing negative for COVID-19.
Spotlight sent questions to the Limpopo Department of Health but did not receive a response by the time of publication.
No forced isolation in state facilities in the North West
Previous media reports claimed that similar to KZN and Limpopo, the North West was also enforcing mandatory isolation of all persons with COVID-19. However, the North West Health Department denied this.
In a statement earlier this month the department reiterated their isolation policy was the same as the President’s directive, meaning that those with mild to no symptoms could self-isolate at home if they could safely do so. Otherwise, a government facility could be used.
Departmental Spokesperson Tebogo Lekgethwane told Spotlight that currently there was only one person in a state isolation facility, and that over 1 500 beds had been identified for this purpose across the province.
Spotlight asked the National Department of Health if provinces were permitted to enforce mandatory isolation in state facilities and how this aligned with NICD guidelines, as well as if the Department had planned to intervene against the measures. The Department could not respond by the time of publication.
Both KZN and LP were asked questions concerning the procedures for the enforcement of isolation in state facilities, the number and description of the facilities in use, as well as their plans for managing both state isolation facilities and their respective public health systems. The provinces were also asked about potential concerns about how the measures could affect testing, and if they had received any backlash from the National Department.
Note: A representative of the TAC is quoted in this article. Spotlight is published by SECTION27 and the TAC, but is editorially independent, an independence that the editors guard jealously. Spotlight is a member of the South African Press Council.
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