In response to the COVID-19 pandemic, the South African state has enacted regulations which allow for forced testing and quarantine. These regulations limit the rights of persons but are likely a justifiable limitation of rights.
In a widely reported case, a family refused to be quarantined and fled the health care facility where the mother and daughter tested positive for COVID-19. The father refused to be tested. Upon application, the Department of Health was granted a court order, on an urgent basis, to trace the family and compel their cooperation for testing and quarantine.
The Regulations Relating to the Surveillance and the Control of Notifiable Medical Conditions allow for mandatory medical examination, treatment, isolation and quarantine upon the granting of a court order in cases of refusal. The National State of Disaster, declared on 19 March, promulgated new regulations. Section 4 of the regulations allows for anyone refusing to be tested, isolated or quarantined to be detained for a period up to 48 hours. This prevents the person from infecting others while a court order is sought. These regulations limit several constitutionally enshrined rights, including the right to health. The right to health is enshrined in section 27 of the South African Constitution (“Constitution”). In the case of forced testing and quarantine, the constitutional rights of the public must be balanced against the individual’s rights.
Under “normal” conditions, it would be an affront to constitutionally entrenched rights to force people to undergo tests against their will and control where they can and cannot go. The consideration by a court of the facts before it and a proper balancing of competing rights will allow for reasonable and justifiable limitations of rights – securing the security of all and helping to curb the COVID-19 pandemic.
Section 36 of the Constitution provides guidance as to when rights in the bill of rights, can be limited. A balance must be struck between limiting the right and the outcome – taking into account the nature of the right, the importance, nature, extent and purpose of the limitation and whether the limitation is the least restrictive means to achieve the purpose. On the facts, the purpose of preventing the spread of a deadly pandemic across the nation is weighted as more important than limiting the rights of individuals to give consent to a test and moving around freely for a limited period. As stated in the Constitution, South Africa is founded on the values of “human dignity, the achievement of equality and the advancement of human rights and freedoms” and “that South Africa belongs to all who live in it, united in our diversity.” In accordance with the democratic values of freedom and self-determination, it should be up to an individual to decide how to live their version of a “good life.” By vitiating the need for consent, mandatory testing and quarantine go against the commitment to the values of freedom and self-determination. These principles ensure that the individual is respected as the best person to decide for themselves, and also that the decision itself is respected.
However, decisions about our own individual lives cannot be considered in isolation. We consider ourselves in relation to our families and communities. Healthcare decisions often take into account responsibilities owed to and by an individual to others.
A utilitarian reading would require that the state acted as it did to protect the rights of the rest of the population. Consequentialism often accords with how most people instinctively think – weighing up the pros and cons of a decision. State paternalism, where the state decides on an individual’s behalf what is best for them, is justified in this case. Limiting the rights of 3 individuals is outweighed by the public policy considerations of spreading a highly contagious, infectious and deadly virus to multitudes of people who also hold the rights to health, bodily integrity, safety and security, environment and dignity.
It is hoped that, in a time of emergency, uncertainty and fear, people will comply with regulations and trust in the discretion of leaders and medical personal to set the protocols necessary to avoid further infection and harm. Officials should not have to resort to court orders to ensure compliance with protocols that are so clearly in the public interest.