The Use of Confinement in the Name of Public Health

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Photo: Smithsonian Magazine

Throughout recent history, confinement has been justified by countries on purported ‘public health’ grounds to prevent the spread of infectious diseases. However, too often the practice of confinement leads to egregious rights violations through overly-broad use of isolation or other forms of confinement, which sometimes includes excessive and lengthy duration and tends to be counter-productive, such as when detention, isolation, and quarantine increases fear and stigma around a disease, thereby driving people with symptoms underground and away from health facilities. While in modern times the Siracusa standards require inter alia that measures restricting rights are strictly necessary to achieve the stated aim and that a measure is not imposed arbitrarily, too often these standards are far from met.

First used to prevent the spread of plague epidemics during the 14th century, quarantine restricted ships from coming into port for 40 days. Quarantine and other forms of confinement have also been used in the context of many diseases including yellow fever, cholera, leprosy, and more recently SARS and MERS; confinement in the context of tuberculosis also has a long and dark history.

In the context of SARS, quarantine was widely used in Asia and Canada—13,000 people were quarantined in Canada while China used extreme quarantine measures including cordoning off entire neighborhoods, despite low infection rates. China, Singapore and Hong Kong utilized coercive measures including imposing criminal penalties for breaching quarantine orders rather than the largely voluntary approach used in Canada.

The WHO emphasises that involuntary isolation and detention must be methods of last resort. However, confinement is too often used as a ‘public health response’ to TB and instead of addressing TB, drives the further spread of it. In some contexts and countries, confinement and isolation may be the default rather than the exception, including where laws allow for mandatory hospitalization or treatment. Mandatory and overuse of hospitalization and involuntary isolation create a situation in which people with TB are coercively confined, sometimes in prison-like conditions. Relatedly, persons in confined settings including prisons and immigration detention centres suffer high rates of TB infection due to high prevalence rates in confined settings and risk factors which increases risk of TB including inadequate nutrition and lack of or poor quality health care. Further, disadvantaged populations disproportionately end up in prison, populations who already have a high burden of disease and often have inadequate access to health services. Such individuals are already at higher risk of TB and confinement further increases this risk, particularly where there are poor prison conditions.

In several Eastern Europe and Central Asian countries, the over-use of hospitalisation and involuntary approaches to TB impede human rights and an effective TB response. For example, in Russia the law allows for involuntary examination of TB patients while in Kyrgyzstan a TB specific law allows for a wide range of involuntary TB-related measures including testing and treatment, isolation and hospitalisation. Further, in addition to involuntary isolation, patients in Kyrgyzstan who are unable to adhere to treatment are subject to a large fine.

Prisons and confinement settings are incubators for TB whilst simultaneously the most vulnerable members of society end up in prison due to criminal justice issues such as inappropriate application and selective enforcement of criminal laws and high rates of incarceration and confinement which disproportionately impact the poor and marginalised. An extreme example of rights violations that have occurred in the context of TB-related confinement, in Kenya patients who were unable to adhere to TB treatment were imprisoned under the Public Health Act which includes a broad measure authorising confinement on grounds of ‘public health.’ The two individuals who were imprisoned were not treatment literate—they had not received proper treatment counselling and support and were thus not aware that they should continue with treatment even when they started feeling better. Beyond the deprivation of liberty and other human rights violations inherent in imprisonment on the basis of inability to adhere to TB treatment, prison is perhaps the least appropriate setting for individuals with TB, particularly if there is no access to treatment, support and proper nutrition and since confined prison settings may more easily spread TB if they are in overcrowding and inadequately ventilated conditions.

Similarly, many countries around the world, including in a number of high burden TB countries, have laws which effectively criminalise TB, whether disease specific or of broad application to many diseases. Some of these include Angola, Bangladesh, Brazil, China, DPR Korea, Ethiopia, India, Kenya, Lesotho, Liberia, Myanmar, Namibia, Nigeria, Pakistan, Russia, Tanzania, Zambia and Zimbabwe. While there is limited information on the extent to which these laws are enforced or used in practice in many of these countries, their very existence—particularly when definitions are overly-broad and fail to meet Siracusa requirements—further stigmatises TB and other infectious diseases and have the potential to lead to serious human rights violations. It is urgent that countries move away from confinement as a response to TB and other infectious diseases and towards community-based, evidence-informed and human rights-based approaches.

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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