Table 6: TB and Freedom from Arbitrary Arrest and Detention
Examples of Human Rights Violations
- Persons diagnosed with TB, who have been declared to be noncompliant with TB treatment, are arrested.
- Persons arrested for noncompliance with TB treatment are not provided with treatment while in detention.
|Human Rights Standards||Treaty Body Interpretation|
|ICCPR 9(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.||HRC: Noting that in Moldova ”under a regulation promulgated in August 2009, persons with tuberculosis may be subjected to forcible detention in circumstances where he or she is deemed to have ‘avoided treatment’. In particular, the regulation is unclear as to what constitutes the avoidance of treatment and fails to provide, inter alia, for patient confidentiality or for the possibility for the judicial review of a decision to forcibly detain a patient.” Recommending that the State “should urgently review this measure to bring it into line with the Covenant, ensuring that any coercive measures arising from public health concerns are duly balanced against respect for patients’ rights, guaranteeing judicial review and patient confidentiality and otherwise ensuring that persons with tuberculosis are treated humanely.” CCPR/C/MDA/CO/2 (2009).|
|CAT 16(1) Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.||CAT: Expressing concern in Moldova over legislation providing for forcible detention of persons with tuberculosis deemed to have “avoided treatment,” including lack of clarity “as to what constitutes the avoidance of treatment” and failure to provide adequate safeguards and procedural rights with respect to access to legal representation, “regular review of the reasons for detention or for maintaining continued detention, privacy, family and correspondence, confidentiality, data protection, non-discrimination and non-stigmatization.” Recommending that the State “should urgently review the regulation on forcible detention of persons with tuberculosis and related policies, and bring them into compliance with the Convention, in particular guaranteeing independent regular review of detention measures, patient confidentiality and privacy, as well as non-discrimination in their application.” CAT/C/MDA/CO/2 (2010).|
|Human Rights Standards||Case Law|
|ECHR 5(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants.||ECtHR: Holding that the involuntary placement in the hospital of an HIV-positive gay man to prevent him from spreading HIV to others violated Art. 5. The Court developed criteria for determining whether a State Party’s compulsory isolation of an individual to control infectious disease satisfies ECHR 5: “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 …” Case of Enhorn v. Sweden, 56529/00 (Jan. 25, 2005).|
Joint Statement on compulsory drug detention and rehabilitation centres (ILO et al., 2012):
Compulsory drug detention and rehabilitation centres raise human rights issues and threaten the health of detainees, including through increased vulnerability to HIV and [TB] infection…. [S]uch detention often takes place without the benefit of sufficient due process, legal safeguards or judicial review. The deprivation of liberty without due process is an unacceptable violation of internationally recognised human rights standards.
WHO Guidelines for the programmatic management of drug-resistant tuberculosis (WHO, 2011):
Recommendation 6. Patients with MDR-TB should be treated using mainly ambulatory care rather than models of care based principally on hospitalization….
WHO Guidance on ethics of tuberculosis prevention, care and control (WHO, 2010):
Involuntary isolation and detention as last-resort measures. Isolation or detention should be limited to exceptional circumstances…. Isolation or detention should never be implemented as a form of punishment. Patients who decline treatment and who pose a risk to others should be made aware in advance that their continued refusal may result in compulsory isolation or detention….
If, in a rare individual case, a judgement is made that involuntary isolation or detention is the only reasonable means of safeguarding the public, it is essential to ensure that the manner in which isolation or detention is implemented complies with applicable ethical and human rights principles. As set forth in the Siracusa Principles, this means that such measures must be:
- in accordance with the law;
- based on a legitimate objective;
- strictly necessary in a democratic society;
- the least restrictive and intrusive means available; and
- not arbitrary, unreasonable, or discriminatory….
In order to make sure that these principles are followed, countries should review their public health laws to ensure that they carefully limit the scope of government authority and provide due process protections for individuals whose liberty may be restricted. In addition, in order to minimize the danger of arbitrary enforcement, countries and TB programmes should develop clear criteria and procedures for the use of non-voluntary measures, with involvement from TB patients and civil society.
WHO Guidance on human rights and involuntary detention for XDR-TB control (WHO, 2007):
In this regard, if a patient willfully refuses treatment and, as a result, is a danger to the public, the serious threat posed by XDR-TB means that limiting that individual’s human rights may be necessary to protect the wider public. Therefore, 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.
Patients’ Charter for Tuberculosis Care (World Care Council, 2006):
Justice. The right to make a complaint through channels provided for this purpose by the health authority and to have any complaint dealt with promptly and fairly. The right to appeal to a higher authority if the above is not respected and to be informed in writing of the outcome.
Siracusa Principles (UN Economic and Social Rights Council, 1985):
Article 25. Public health may be invoked as a ground for limiting certain rights in order to allow a state to take measures dealing with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured.
Article 26. Due regard shall be had to the international health regulations of the World Health Organization.
Article 39. A state party may take measures derogating from its obligations under [ICCPR Art. 4] only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation….
Article 70. Although protections against arbitrary arrest and detention (Art. 9) and the right to a fair and public hearing in the determination of a criminal charge (Art. 14) may be subject to legitimate limitations if strictly required by the exigencies of an emergency situation, the denial of certain rights fundamental to human dignity can never be strictly necessary in any conceivable emergency. E/CN.4/1985/4 (1985).