A question we need to ask ourselves is whether the current South African public health infrastructure is able to deal with a pandemic of the proportions of swine flu.
The law has little to do with the control of a pandemic, which the classification lent to swine flu by the World Health Organisation. However, the law is designed to provide support and infrastructure to the authorities for the purposes of dealing with epidemic and pandemic outbreaks. One of the oldest and most effective legal means of supporting the authorities in a pandemic or epidemic is the legal concept of quarantine and isolation.
The application of the legal principles relating to quarantine and isolation is a controversial area of the law especially in so far as a person's rights in the Bill of Rights are concerned. The Bill of Rights affords to everyone security of their person, freedom of movement, dignity and equality - which are rights that are, in one way or another, limited or compromised by a quarantine or isolation order. South African law does provide for isolation and quarantine bearing in mind that South African law includes the provisions of the International Health Regulations Act No. 28 of 1974 and section 7 of the National Health Act No. 61 of 2003 ("the NHA").
In a recent decision by the Western Cape High Court, Cape Town in Minister of Health, Western Cape v Goliath & Others 2009 (2) SA 248 (C), the court held that section 7 of the NHA is wide enough to encompass the involuntary isolation of patients with infectious diseases in state funded healthcare facilities. The Goliath decision concerned XDR tuberculosis or drug resistant TB. The application was brought to the Cape Town High Court by the MEC for Health in the Western Cape in order to restrain the respondents in isolation due to the infectious nature of XDR-TB. In this regard, the Cape Town High court considered XDR-TB as follows: "The respondents have been diagnosed with XDR TB and are presently infectious. Furthermore, it appears to be beyond dispute that the respondents' contact with their families and other members of the public create a severe public health risk of infecting others with XDR TB. In the circumstances, the MEC feels justified in seeking an order permitting their continued isolation at the facility until they are no longer infectious." (at paragraph 15)
The court examined a number of areas of law including the United Nations International Covenant on Civil and Political Rights. The conclusion the court arrives at is that "it is abundantly clear that, in principle, the limitation on the freedom of movement of patients with infectious diseases is reasonable and justifiable in 'an open and democratic society based on human dignity, equality and freedom' as contemplated by section 36(1) of the Constitution." (at paragraph 21) However, the court also accepted the respondents' argument that "in the present state of law in South Africa, there is 'no constitutionally valid statutory basis for the arrest and detention of persons such as the respondents'." (at paragraph 22) The court accepted that even if one were to accept the arguments of the respondents, by interpreting section 7 of the NHA so as to realise its objectives, one was able to include in that section the lawful isolation of patients with infectious diseases at state funded healthcare facilities.
Section 7 of the NHA deals with the consent of a user to healthcare services. Section 7 provides that in certain circumstances health services may be rendered to a user in circumstances where that user has not provided his or her informed consent or where the failure to treat the user will result in a serious threat to public health. However, the court heralds a caution to the health authorities in respect of the current infrastructure in the law relating to isolation and quarantine:
"Having said that, it is undoubtedly preferable that the full statutory and regulatory framework be put into place and implemented as soon as practically possible by promulgating the draft regulations that have been published for comment as long ago as January [2008]. This does not mean, however, that until such time as the regulatory framework is in place, the MEC is powerless to give effect to his statutory duty to 'provide services for the management, prevention and control of communicable and non communicable diseases'." (see paragraph 28)
Therefore, South African law may not be in the best position to assist the health authorities with the outbreak of a pandemic or epidemic of the proportions of swine flu as it has occurred in jurisdictions such as the United States of America and Mexico. However, the courts are willing to approach existing legislation, such as the NHA, to deal with a possible public health catastrophe. However, this takes the debate no further about the manner in which and control of the entrance of people and the diseases they may carry in the Republic over the Republic's terrestrial borders and through its various ports of entry.
This may indeed be a case that prevention is better than cure bearing in mind that previous worldwide pandemics have caused the death of millions of people. It is not that South Africa is without the resources in law to support and underscore a proactive pandemic control and awareness plan in accordance with its obligations as a member of the World Health Organisation. However, the ability of a government to manage a pandemic should not only be measured against its ability to apply quarantine and isolation laws but also its ability swiftly to deal with the registration of applicable medicines, vaccines and treatments, mobilise the requisite expertise in terms of healthcare providers and co ordinate itself with regional efforts to dispense medicines, deploy appropriate expertise and make available resources in order to treat the pandemic in question. In light of the fact that we, in this country, have been debating the state of our public health facilities, administrative delays in the registration of medicines and recently striking public health providers for quite some time, it is unfortunately doubtful that the current public health infrastructure may be found wanting in the face of a pandemic of the proportions of swine flu.
