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Coronavirus: How to challenge compulsory treatment?

Faced by the spreading SARS-CoV-2 epidemic, the Polish Parliament and President rushed through a Special Coronavirus Act. The act is intended to clarify and supplement regulations on prevention of the spread of infectious diseases in Poland. But by giving total primacy to protection of the public interest, the act ignores the issue of the rights and freedoms of persons subjected to various forms of compulsory treatment (hospitalisation, quarantine, and epidemiological supervision). Do individuals have any means of legal protection in this context?

What is the special act all about?

The Special Coronavirus Act (full name: Act on Specific Solutions Connected with Prevention, Counteracting and Combating COVID-19 and Other Infectious Disease and Crises Caused by Them of 2 March 2020) focuses on tasks and activities of public institutions. It regulates for example the competencies of the Prime Minister, province governors and local governments, and designates funding for actions to combat the epidemic in Poland. It also includes regulations on remote working, additional leave for parents if nurseries and schools are closed, and special safety rules for medical personnel and other staff in contact with infected persons. It also amends the Act on Preventing and Combatting Infections and Infectious Diseases in Humans, in force since 2008, in the area of compulsory treatment.

Hospitalisation, quarantine, and epidemiological supervision

Under the special act, in order to prevent the spread of infections and infectious diseases, persons suffering from an infectious disease or suspected of infection may undergo compulsory hospitalisation, in which the patient is provided round-the-clock hospital care, on either a planned or an emergency basis.

Meanwhile, healthy persons who were in contact with sick persons are subject to mandatory quarantine or epidemiological supervision, if ordered by sanitary inspection officials, for a period of no longer than 21 days from the date of last contact with the sick person. Mandatory quarantine or epidemiological supervision may also be applied to the same person more than once, until it is determined that there is no threat to human life or health.

Quarantine means isolation of a healthy person who was exposed to infection, in order to prevent the spread of especially dangerous and highly infectious diseases. Quarantine may occur at the person’s place of residence or other place designated by a sanitary inspection official.

Epidemiological supervision involves observation of a person infected or suspected of infection, without limiting the person’s freedom of movement, as well as performing sanitary and epidemiological tests on the person to identify disease-causing biological factors or to confirm the diagnosis of an infectious illness.

Compulsory treatment is conducted on the basis of a decision by the county sanitary inspector. The decision is immediately enforceable. If the patient complies with the decision, treatment begins without commencement of further procedures. But if the patient does not consent to the action ordered, compulsory treatment is applied as a result of a proceeding conducted under the Administrative Execution Proceedings Act.

An appeal to the province inspector may be filed against the county inspector’s decision, via the county inspector, within 14 days from service of the decision. If the appeal is not upheld, a challenge may be filed with the province administrative court, via the appellate authority, within 30 days after service of the decision of the appellate authority.

The appellate procedure adopted raises doubts, as compulsory treatment interferes with the individual’s freedom, including the right to privacy. Thus its use should be subject to review by the court, which will weigh under a proportionality test whether the patient’s freedoms must be limited for the sake of protecting the collective health.

Legal measures for persons deprived of freedom through compulsory treatment

From the perspective of the European Convention on Human Rights, hospitalisation and quarantine constitute a form of deprivation of liberty. Deprivation of liberty occurs when a person is confined in a particular restricted space for a more than negligible length of time and has not validly consented to the confinement (Storck v Germany, application no. 61603/00, ECtHR judgment of 16 June 2005; Stanev v Bulgaria, application no. 36760/06, ECtHR judgment of 17 January 2012). Hospitalisation and quarantine meet both conditions. Either can be applied despite the individual’s lack of consent. Hospitalisation is closer to typical confinement in a place of isolation, while quarantine resembles house arrest, which is regarded as deprivation of liberty (Mancini v Italy, application no. 44955/98, ECtHR judgment of 2 August 2001). Epidemiological supervision does not have the same character. It involves certain restrictions, but more on privacy than personal freedom.

As hospitalisation and quarantine constitute deprivation of liberty, it should be considered whether for the sake of protecting the public interest the rights of persons subjected to these measures can be ignored or restricted. The European Convention on Human Rights does not provide grounds for stripping such persons of their rights, but at most allows certain restrictions. This possibility exists if the restriction is introduced in regulations of appropriate rank (a statute) and also exclusively for a specific purpose (prevention of the spreading of infectious diseases). But the convention provides that anyone who is deprived of liberty by detention “shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

There are legitimate grounds for stating that the Special Coronavirus Act does not meet this standard for judicial review of hospitalisation or quarantine. The decision by the county sanitary inspector is not appealable immediately to the court. While it is true that after obtaining a decision from the appellate authority (the province sanitary inspector) the case may reach the administrative court, this could hardly be said to occur “speedily,” nor, given the nature of review by the administrative courts, could it be said that the court would decide on the lawfulness of the deprivation of liberty. Thus the act does not meet the standard of the convention, even while it provides the sanitary inspectorate huge leeway to issue arbitrary decisions. This is because the only condition is “contact” with persons infected with infectious disease, and the provision says that quarantine will be applied “if the authority so orders.”

In this situation, the only effective means of review of the legality of deprivation of liberty as a result of hospitalisation or quarantine may prove to be a claim for damages or compensation for infringement of personal interests. The plaintiff would have to show that there was an infringement of personal interests, which in the case of hospitalisation should not present a problem. In the case of quarantine, the plaintiff would have to show that he was actually deprived of liberty through the necessity to remain in a certain place. But the vital issue may be showing that the deprivation of personal liberty was contrary to national regulations (e.g. quarantine was ordered despite a lack of contact with an infected person, was applied by the improper authority, for too long a time, or groundlessly extended). In the statement of claim, in addition to monetary claims the person subjected to hospitalisation or quarantine could demand cessation of further infringements, such as prolongation of the use of compulsory treatment.

Artur Pietryka, adwokat, Aleksandra Połatyńska, Business Crime practice, Wardyński & Partners