By Migara Doss B.A (Sp), AAL
The outbreak of the COVID 19 disease was first identified in December, 2019 in the Chinese City of Wuhan in the Hubei Province. Since then there has been a rapid growth in the disease throughout the globe and on 11th March, 2020 the World Health Organization declared that the disease has reached the level of a ‘Global Pandemic. At present the impact of the COVID 19 outbreak has affected over 200 Countries and reached a death toll that increases the 50,000 mark.
Sri Lanka has also fallen victim to this global epidemic and at present records over 150 confirmed patients and 04 reported deaths (as at 02.04.2020). In these times of crisis there is much taking place in society with severe restrictions imposed on movement and placing the entire nation at a standstill. During these times where desperate measures are being forced to ensure Public Safety, it is of pivotal importance to generate public awareness on the legal and social foundations for such actions. Such awareness is of essence as it would generate confidence in the tireless and rigorous efforts of Healthcare Workers and Public Servants and further incentivize the Public to cooperate in the common struggle in combating this menacing virus.
In considering the present restrictions placing the nation under continuous Curfew, it is important to note that even under International Human Rights Law there is consensus on the curtailment of rights in the greater interests of Public Health and National Emergency[1]. In Sri Lanka legal provision are made to address health emergencies of the kind experienced at present since Colonial times and made law under the ‘Quarantine and Prevention of Diseases Ordinance No. 03 of 1897 (As Amended)’ (hereinafter referred to as the QPD Ordinance). This Ordinance operates as the principle legal enactment that provides sanction for most urgent steps implemented in the past few weeks. The QPD Ordinance grants special and broad powers on the Minister to regulate such necessary measures in combating a disease that threatens the health and safety of the public. Some of the powers entrusted to the Minister under this Ordinance and widely seen in practice over the past few weeks could be listed briefly as follows-
- The power to regulate or place under quarantine any aircraft, vessel or boat arriving to the Country;
- To place persons or goods arriving under any aircraft, vessel or boat under quarantine;
- To establish and maintain Quarantine Centers throughout the Country;
- To order isolation of persons diseased and ordering their admittance to hospitals and other places of medical treatment under detention until complete cure.
- To clean and if necessary destroy drains, sewers, cesspits and houses of diseased persons for the purpose of disinfecting the same.
- Prescribing persons to report of persons diseased[2].
The QPD Ordinance also imposes criminal sanction on those who contravene and impede the implementation of regulations created there under. This wide array of powers entrusted on the Minister clearly aim the greater interest of the public and the dire need to return to normalcy. However it is vital to understand that these wide powers are subject to the internationally accepted standards of proportionality[3] and at all times are sanctioned under the provisions of law.
Amidst the stringency of regulations in play and rigorous subjection of the citizenry to processes of law and procedure, there are still safeguards and guarantees afforded to all vulnerable parties and especially Patients contracted with the disease. In this regard it is of utmost importance to consider the legal protection and rights afforded to vulnerable parties and Patients of the disease, whose cooperation is of essence to tackle the impending infectious crisis.
It has indeed become a growing concern, to secure the safety and well being of Patients who have contracted the disease when such persons are subjected to isolation and treatment. There is absolutely no debate on the provision of the best suited treatment for persons identified to have contracted the disease, wherein the Government of Sri Lanka in keeping with the Internationally accepted standards are obliged to provide the best attainable physical and mental health necessary in treating the patients contracted with the disease[4]. This duty of treatment for identified patients is an internationally accepted standard which has been ratified by the Government of Sri Lanka under the International Covenant on Economic, Social and Cultural Rights in June, 1980[5].
The treatments of Patients contracted with the disease have raised alarms in the public by reason of the rigorous medical processes of isolation. A similar process has been thrust upon potential patients who are directed to quarantine procedures in order to contain the spread of the epidemic. Rigorous as these procedures may seem, these are necessitated by the severity of the epidemic and are accordingly supported in law under the QPD Ordinance. Thence, it is important to dwell into some of the common fears and suspicions entertained by members of the public in cooperating with the authorities at the height of this epidemic situation.
A main fear felt by members of public and patients contracted with the disease is the matter of privacy. The privacy of patients and potential patients under quarantine has become a matter of pivotal importance, as the disclosure of their identities may result in public alienation and social repercussions (i.e. workplace harassment, shaming etc). The global reach of this pandemic has indeed felt the need of protecting information of patients and potential patients from the wrath of the public eye. This dire need of privacy was in fact necessitated by some of the negative implications of revelations experienced in countries such as South Korea and China in the wake of the COVID 19 epidemic. Accordingly, protection of privacy of patients has become a priority of many COVID 19 battling countries and they have relied on different sources of their laws to protect the privacy of patients/ potential patients during this crisis. In this regard emphasis needs to be made to the ‘Cyber Security Law of the Republic of China’[6] in terms of which the Cyberspace Administration of China issued a notice on 09.02.2020 to the effect that personal information of COVID 19 patients ought not be released for any purpose, other than the control and prevention of disease[7]. The United States which is another country facing the severity of the present epidemic also has in place regulations aimed at protecting the privacy of patients in terms of ‘Health Insurance Portability and Accountability Act’[8] (HIPAA) which regulates the dissemination of patient information by healthcare professionals. The United States Department of Health and Human Services also released a bulletin in February, 2020 sanctioning the release of any patient information, unless a written authorization is prior obtained[9]. Canada, being another nation battling the present epidemic has guaranteed patient privacy in terms of the law in the form of their ‘Personal Information Protection and Electronic Documents Act’ (PIPEDA)[10] which regulates disclosure of personal information in health related practices.
The above examples in international practice on privacy of patients is important to understand the overwhelming emphasis that nations give at securing the safety and well being of patients. This global consensus in no uncertain terms applies to Sri Lanka and measures are in place to ensure the safety and well being of our patients and potential patients. In this regard the Sri Lanka Medical Association has published ‘Guidelines on Sharing Significant Information in Health Care Settings[11]’ (GSSIH) in 2012 which provide for measures aimed at protecting the privacy and confidentiality of patients in Healthcare Settings. These Guidelines essentially apply to medical professionals treating patients contracted with the disease and guards their privacy and confidentiality from the eyes of the larger public.
The grave concerns of Privacy of patients/ potential patients have further called for sanctions on media of our country to respect and protect the privacy of vulnerable parties in their reporting of news. In this context it is important to note that quite apart from the disclosure of patient information, the targeting of minority and vulnerable groups has raised much attention in the escalation the crisis. This trend is regrettably a global phenomenon and has called the United Nations Office of the High Commissioner to issue a declaration on 16th March 2020, condemning the use of emergency measures to unleash repression on minority and vulnerable groups[12]. This dire need of implementing best practices of the Media was strongly felt even in Sri Lanka and as a result the Ministry of Health and Indigenous Medical Services issued communiqué dated 02.04.2020 formulating Media Guidelines in the wake of the COVID 19 outbreak. Interestingly these guidelines have expressly sanctioned the reporting of diseased patients with reference to their religion or nationality and further have called to refrain from inciting hate amongst the public. The regulations also focus on the rights of the individual patient/potential patient and sanction the publication/exhibition of their photographs or videos in the media.
In considering these present safeguards on patients and vulnerable groups, it is safe to conclude that patients and those belonging to other vulnerable groups have acquired rights in the eyes of law to protect their privacy and confidentiality from threats posed by the epidemic. The healthcare providers and general media who are identified as main actors who are/maybe equipped with sensitive patient information on infected patients and vulnerable groups are adequately sanctioned by these guidelines and rules against the release of the same in a manner prejudicial to such vulnerable groups. Should such information be disseminated prejudicing the interest and safety of vulnerable groups and especially patients, such parties shall then have a right in law to claim Damages for the breach of a duty of care on part of such earlier mentioned actors.
It is also interesting to note that as the State, there is an obligation to provide the highest attainable medical treatment to patients infected with the disease. Hence, there is no reason to feel fear in disclosing medical conditions relating to the disease and seeking treatments provided by the state. It is of importance to note that this obligation on part of the State to provide healthcare to its citizens is recognized globally as a State Obligation and furthermore the state is expected to discharge such obligation free from any discrimination or bias. Should there be any discrimination or ill treatment of patients at the hands of healthcare service providers, such conduct would be deemed an infringement of the fundamental rights of any patient and shall accrue a cause of action under the Fundamental Rights Jurisdiction recognized by the Constitution of Sri Lanka.
The operation of the law at times of crisis such as these certainly has the effect of restricting the freedoms and rights enjoyed by the citizenry. However, it ought to be remembered that such restrictions and curtailment of rights are only aimed at averting a larger catastrophic outcome which may result in these crisis times. Yet, despite such restrictions, the law also places high regard on the vulnerability of persons and especially patients and are highly conscious of their rights in view of the impending crisis. It is for such reasons that the law has placed several safeguards both globally and nationally, with a view of ensuring a safe passage for all affected parties to overcome the dangers and evils of the COVID 19 epidemic. Therefore, it is of pivotal importance for all persons in society to contribute their respective roles in combating and overcoming this epidemic.
[1] Siracusa Principles on the limitation and derogation provisions in the International Covenant on Civil and Political Rights. American Association for the International Commission of Jurists. 1985.
[2] Quarantine and Prevention of Diseases Ordinance No. 03 of 1897 (Amended by Act No. 12 of 1952)
[3] UN Human Rights Committee (HRC), CCPR General Comment No. 29: Article 4: Derogations during a State of Emergency, 31 August 2001, CCPR/C/21/Rev.1/Add.11, available at: https://www.refworld.org/docid/453883fd1f.html [accessed 2 April 2020]
[4] Article 12.International Covenant on Economic, Social and Cultural Rights. Entered into force by UN General Assembly on 03.01.1976.
[5] Overview. Ministry of Foreign Relations Web. https://www.mfa.gov.lk/upr/treaty-based-bodies/overview-2/. Date accessed 03.04.2020. web.
[6] Translation: Cybersecurity Law of the People’s Republic of China (Effective June 1, 2017). New America Blog. https://www.newamerica.org/cybersecurity-initiative/digichina/blog/translation-cybersecurity-law-peoples-republic-china/. Accessed on 03.04.2020. web.
[7] Notice on Protecting Personal Information and Using Big Data to Support Joint Prevention and Joint Control Work. New America Blog. Published on 09.02.2020. https://www.newamerica.org/cybersecurity-initiative/digichina/blog/translation-chinese-authorities-emphasize-data-privacy-and-big-data-analysis-coronavirus-response/. Accessed on 03.04.2020.web.
[8] Summary of the HIPAA Security Rule. U.S. Department of Health and Human Services. https://www.hhs.gov/hipaa/for-professionals/security/laws-regulations/index.html. Date Accessed 03.04.2020.web.
[9] Office for Civil Rights, U.S. Department of Health and Human Services BULLETIN: HIPAA Privacy and Novel Coronavirus. February, 2020. https://www.hhs.gov/sites/default/files/february-2020-hipaa-and-novel-coronavirus.pdf. Date Accessed 03.04.2020.web.
[10] PIPEDA in brief. Office of the Privacy Commissioner of Canada Web. https://www.priv.gc.ca/en/privacy-topics/privacy-laws-in-canada/the-personal-information-protection-and-electronic-documents-act-pipeda/pipeda_brief/. Date Accessed 03.04.2020. Web.
[11] A Synopsis of Guidelines on Sharing Significant Information in Health Care Settings. Sri Lanka Medical Association. 2012. Print.
[12] COVID-19: States should not abuse emergency measures to suppress human rights – UN experts. United Nations Office of the High Commissioner. 16th March 2020. https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25722. Date Accessed 02.04.2020. Web.
