Aspects Of The Legal Framework For An Ebola Response

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Ever since Ebola touched down with Thomas Eric Duncan in Texas, we here in Jamaica have been on pins and needles. No doubt some of us have taken to heart the old adage “when America sneeze, Jamaica ketch di cold”. Yet, with a mortality rate of approximately 70% in the current epidemic in West Africa, Ebola is no common cold [compare with the general mortality rate of 2.5% for influenza (the Economist, 2014)]. Bearing in mind such stark statistics, our government has been anxious to show that it’s ready, should America or some other country “sneeze” Ebola onto us.

Three weeks ago the Prime Minister announced the formation of an integrated National Coordinating Team whose purpose is to heighten our preparation for the possibility that Ebola could one day darken our doorstep. This team, headed by the Ministry of Health and the Jamaica Defence Force, is multi-sectoral in approach. Such a move is in line with recently published recommendations by the World Health Organization (WHO) in Geneva on preparing for an Ebola epidemic (WHO, 2014). Closer to home CARICOM heads of governments have just last week agreed a 10 point Ebola plan, one point of which is to strengthen member state health systems.

In that regard, one feature of a strong health system is a robust legal framework which not only empowers health officials to respond to contagion, but also prescribes the acceptable limits in which they may act. An overview of our framework in Jamaica reveals at least three pieces of legislation which provide powers that the National Coordinating Team (and health officers acting in line with its directions) can utilize against Ebola.

Since Ebola is likely to be a foreign arrival, perhaps it’s fitting to start with that part of the framework relevant to the entry of persons into Jamaica. The principal laws here are the Immigration Restriction (Commonwealth Citizens) Act and the Aliens Act. The government has purportedly acted under these laws (sections 4 of the Immigration Restriction (Commonwealth) Act and 6 of the Aliens Act), when on October 16, 2014 it imposed a ban on travelers from Ebola-stricken Guinea, Liberia and Sierra Leone.

Now, in the event that the unthinkable happens and Ebola takes hold in Jamaica, there are powers available to the Minister of Health and medical officers under the Public Health Act. Under section 18 of the Act the Minister may abridge our constitutional right to freedom of peaceable assembly by prohibiting the assembly of any number of persons specified by him. So for example, in the event of an Ebola outbreak, the Minister could ban any public gathering of two or more persons – that would certainly put a damper on Christmas!

The prohibition can apply to any place in Jamaica or to the entire island. Sub-section 3 makes such an order directly enforceable by the police, with failure to comply possibly resulting in criminal sanctions – including imprisonment – in the Magistrates court.  Section 19 is similar to section 18; with the difference being that 19 empowers the Minister to order the closure of any public place or any school in the island for such period as he thinks necessary.

If you think these powers are serious, then the regulations under the Quarantine Act definitely “up the ante”. The principal legislation – the Quarantine Act – establishes a little known public body called the Quarantine Authority. The Authority may direct Health Officers who are appointed under the Act. So far so good, but it’s the powers of the Health Officers under the regulations that matter. The officers can place “any person” arriving in the island under “surveillance”, “observation” or “isolation”. Each of those terms carries specified meanings and consequences under the regulations, but the general effect of each term is that a person who is considered a public health risk by the officer may be placed under medical supervision.

The consequences range in severity with surveillance being the least burdensome form of supervision – that is, it does not involve physical detention – whereas observation and isolation involves physical detention and possible removal to a hospital. Regulation 43 empowers an officer or a constable to enforce observation and isolation against the will of the person.

Although the powers under the various laws identified above may, at first glance, appear to be wide and potentially open to abuse, there are aspects of the legal framework that can limit if and how officials may exercise them. For example the Minister may not be able to exercise the powers under sections 18 and 19 of the Public Health Act unless there exists as a fact the prevalence of a “communicable disease in epidemic proportions” in any part of the island. If there is a dispute about whether or not such a state of affairs exists, then exercise of the powers under those sections may be open to legal challenge.

More importantly the laws are subject to the Constitution, which is the supreme law of the land, so that if the powers are unjustifiably exercised there is another avenue of recourse to the courts. Recently, this has been a live issue in America’s response to Ebola stemming from the claims of Kaci Hickox, an American nurse, who alleged that attempts by officials in New Jersey and Maine to quarantine her upon return from Sierra Leone were unjustified and a breach of her constitutional rights.

This overview of certain laws relevant to our nation’s response in the event of an Ebola outbreak reveals a framework with powers available that can both empower official responses, but also  considerably affect constitutional rights such as the freedoms to movement and peaceable assembly. Yet, there are limits on if and how these powers may be exercised. However while the legal framework may be in place, the effectiveness of any response will depend on other considerations such as resources and coordination, of which there are tentative signs at the national and regional levels.

“The above article and the information contained therein are provided for general informational purposes only and are not intended to be legal advice. No attorney-client relationship is formed nor should any such relationship be implied.”

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