Example 1: Defining the grounds for compulsory isolation of a patient with an infectious disease

Project Type: Litigation

Enhorn v. Sweden, app. No. 56529/00 (Jan. 25, 2005).

Actor

Mr. Eie Enhorn suffered from an infectious disease that Swedish law listed as a threat to public health (HIV/AIDS). Pursuant to a national public health law drafted to stem the spread of infectious disease, Sweden ordered the compulsory isolation of Mr. Enhorn. Mrs. E. Hagstrom, a legal aid attorney practicing in Stockholm, represented the interests of Mr. Enhorn before the European Court of Human Rights.

Problem

Although the petitioner in this case suffered from HIV, the main issue the Court considered concerned the powers of a State Party to the European Convention on Human Rights to order compulsory isolation of an individual with an infectious disease.

This case is centrally important to Europeans who suffer from TB and who are at risk of involuntary detention. Extensively drug-resistant tuberculosis (XDR-TB) and multi-drug resistant tuberculosis (MDR-TB)—in particular—raise the question of whether involuntary detention is justified where voluntary measures have failed or where the patient poses a danger to public health. A number of countries in Europe currently allow for involuntary detention of TB patients:

Legality of Involuntary Detention of TB
Patients in Select European States

Detention  Isolation on
grounds of 
exposure
Exclusion from
activities 
Number of control measures
Spain  N N N 0
France N N Y 2
Germany Y N N 2
Israel  Y N Y 2
Netherlands N N N 2
Finland  N N Y 3
Poland  N N Y 3
England  Y N Y 4
Estonia  Y N N 4
Hungary  N N Y 4
Switzerland Y N N 4
Czech  Y N Y 5
Norway  Y Y Y 6
Russia  Y N Y 6

Procedure

An Administrative Court in Sweden tasked with hearing section 38 actions ordered the compulsory isolation of Mr. Enhorn. The Administrative Court of Appeals upheld Mr. Enhorn’s compulsory isolation. Having exhausted his domestic remedies, Mr. Enhorn brought a human-rights claim before the European Court of Human Rights to challenge his compulsory isolation.

Arguments & Holdings

Existence of “reasonable cause” and “manifest riskas required under the domestic law. The state ordered compulsory isolation of the applicant pursuant to section 38 of the Infectious Disease Act (Sweden), which requires reasonable cause to suppose that the infected person is not complying with the practical instructions issued. It further requires that this omission entails a manifest risk of the infection being spread. did not create the manifest risk of spreading the disease. The Court, however, found that the applicant’s sexual history, which included the infection of a 19-year-old man, misuse of alcohol and failure to follow instructions of medical professionals provided “reasonable cause” to believe that the applicant would not follow future healthcare orders and that his likely omission to follow orders would create a manifest risk of spreading his infection. Therefore, the Court found that the Government satisfied its obligations under section 38, and Mr. Enhorn’s compulsory isolation was legal under Swedish law.

Whether detention and deprivation of liberty was justified under Article 5 § 1(e). The Court itself noted that it had scant jurisprudence on the issue of detaining a person “for the prevention of the spreading of infectious diseases.” The Court, therefore, outlined the criteria for determining whether a State Party’s compulsory isolation of an individual to control infectious disease satisfied Article 5 § 1(e) of the European Convention on Human Rights:

The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or the public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law, it must also be necessary in the circumstances . . . and in accordance with the principle of proportionality . . . . (citations omitted).

The Court found that the Government never provided examples of less severe measures that were shown to be insufficient to safeguard the public health from the risk of infection. Therefore, the Court held that the compulsory isolation of Mr. Enhorn violated Article 5 § 1 of the ECHR.

Commentary & Analysis

This case is important because it establishes criteria for determining whether the compulsory isolation of an individual with an infectious disease is justified under the ECHR. Isolation in accordance with the national law of a State Party is not sufficient to pass scrutiny under the ECHR. To justify isolation of a TB patient or any other patient on the basis of the health threat posed by their infectious disease, a State Party must show that isolation of the patient is:

Necessary—that the State Party considered less severe measures and found them to be insufficient to safeguard the health of the individual or public; and

Proportional—that the degree and length of isolation is proportional to the threat to the individual’s health or public health.

Compulsory detention statutes in Europe, as outlined in the chart above, are susceptible to challenges made on human rights grounds.

The applicant argued that the statue’s required showing of “reasonable cause” and “manifest risk” were too vague. The statute lacked clearness and foreseeability, which would allow him to understand what constituted prohibited conduct. In the alternative, he argued that his actions did not create the manifest risk of spreading the disease. The Court, however, found that the applicant’s sexual history, which included the infection of a 19-year-old man, misuse of alcohol and failure to follow instructions of medical professionals provided “reasonable cause” to believe that the applicant would not follow future healthcare orders and that his likely omission to follow orders would create a manifest risk of spreading his infection. Therefore, the Court found that the Government satisfied its obligations under section 38, and Mr. Enhorn’s compulsory isolation was legal under Swedish law.

Whether detention and deprivation of liberty was justified under Article 5 § 1(e). The Court itself noted that it had scant jurisprudence on the issue of detaining a person “for the prevention of the spreading of infectious diseases.” The Court, therefore, outlined the criteria for determining whether a State Party’s compulsory isolation of an individual to control infectious disease satisfied Article 5 § 1(e) of the European Convention on Human Rights:

The detention of an individual is such a serious measure that it is only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or the public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law, it must also be necessary in the circumstances . . . and in accordance with the principle of proportionality . . . . (citations omitted).

The Court found that the Government never provided examples of less severe measures that were shown to be insufficient to safeguard the public health from the risk of infection. Therefore, the Court held that the compulsory isolation of Mr. Enhorn violated Article 5 § 1 of the ECHR.

WHO Opinion on Compulsory Isolation

Interference with freedom of movement when instituting quarantine or isolation for a communicable disease such as MDR-TB and XDR-TB may be necessary for the public good, and could be considered legitimate under international human rights law. This must be viewed as a last resort, and justified only after all voluntary measures to isolate such a patient have failed. A key factor in determining if the necessary protections exist when rights are restricted is that each one of the five criteria of the Siracusa Principles must be met, but should be of a limited duration and subject to review and appeal. The Siracusa principles are:

  • The restriction is provided for and carried out in accordance with the law;
  • The restriction is in the interest of a legitimate objective general interest;
  • The restriction is strictly necessary in a democratic society to achieve the objective;
  • There are no less intrusive and restrictive means available to reach the same objective;
  • The restriction is based on scientific evidence and not drafted or imposed arbitrarily i.e. in an unreasonable or otherwise discriminatory manner.

Source: www.who.int/tb/features_archive/involuntary_treatment

Additional Sources