4. The Right to Liberty and Security of Person

In extreme circumstances, public authorities might recommend the isolation or quarantine of individuals thought to be suffering from incidences of infectious disease in the early stages of a potential pandemic. Such action has been taken in the recent past, notably in the SARS crisis, where such measures have been attributed with success in limiting the spread of the disease. There, the use of quarantine measures was deemed as being of significant importance in the effort to halt the spread of the disease. The World Health Organisation declared that such efforts were responsible for preventing an enlarged spread of SARS and allowing transmission of the disease to be halted within 4 months. In Canada for instance wide scale use of such measures was made with considerable intrusion upon personal liberties, with for instance, 2000 asymptomatic individuals having been quarantined there. During the SARS outbreak health authorities set various criteria that could be used in determining if a person was to be quarantined including: persons that stayed within a radius of two meters of a probable case, persons who came into contact with body fluids of a probable case and persons who stayed in the same room as a suspected case.

Article 5 of the ECHR states that individuals are entitled to the Right of Liberty and Security of Person unless specific cases which are provided for by law exist. One such possible instance is where the action in question is to ‘prevent the spreading of infectious diseases’. This power of involuntary detention or quarantine was examined by the European Court of Human Rights in Enhorn v Sweden. The case involved measures taken in Sweden to detain a HIV positive individual. The individual in question had already been identified as being responsible for infecting other people with the virus. As a consequence Mr Enhorn had been presented with a list of conditions such as informing all sexual partners about his condition, informing medical staff that would treat him, that he take adequate precautions during sex, that he limit his alcohol intake and that he should have regular consultations with his doctor. When it became clear that Mr. Enhorn was not meeting all of these conditions an order was made that he be detained in isolation for a period of three months. The European Court of Human Rights found that his detention had been illegal. It based the reasoning of its decision on two important legal principles connected to article 5. In procedural terms, the court was concerned that the measure in question be prescribed by law and in substantial terms that the measure in question be proportional and not open to possibility of arbitrary imposition. Regarding the procedural requirements of such measures the court stated that the measures taken must be provided for in law (i.e. exist in legislation) and that the application of such measures should be foreseeable. This means that any law should be well enough detailed to allow an individual to foresee how it might be applied in various circumstances. Regarding the substantive requirements of article 5, the court reasoned that for an individual to be detained because they are suffering from infectious diseases it must be demonstrated that the person is indeed suffering from the disease in question and that the spread of the disease poses a risk for public safety. Furthermore, the detention should be the last possible resort in order to prevent the disease in question from spreading.