The risk of compulsory state quarantine for those who have tested positive for Covid-19 is growing. Twice in the past week, in separate speeches in the Western Cape and the Eastern Cape, Dr Zweli Mkhize has stated that those who test positive for the virus must be admitted to state field hospitals or other isolation facilities, even if they have no symptoms at all.
The prospect is a daunting one. This is best illustrated by the case of two state doctors, Dr Taryn Williams and Dr Claire Olivier, who went into self-isolation in their Limpopo home on testing positive for Covid-19 at the end of March.
However, the Limpopo Health MEC, Dr Phophi Ramathuba – who seemed to blame them for ‘having brought the virus to her province’ – nevertheless insisted that they be removed from their house and taken to the Modimolle MDR-TB facility.
On the basis of false allegations that the two doctors were refusing to self-isolate, the MEC and the head of the provincial health department obtained an ex parte court order – one granted without hearing the doctors’ side of the story – forcing them to move into the Modimolle MDR-TB facility.
Here, the two doctors were locked up in separate rooms for 24 hours a day in what amounted to solitary confinement, denied any medical attention, obliged to use water bottles that could have been contaminated with TB, and ignored by the staff when they called for help. It was only after the South African Medical Association (SAMA) began legal proceedings for their release that a settlement was reached and the doctors were allowed to return home.
The Zithabiseni Incident
Equally disturbing is the example of the dilapidated, dirty, and cockroach-ridden Zithabiseni resort near Groblersdal in Mpumalanga, where a number of people who had returned to South Africa from Mozambique were placed in quarantine for 14 days, initially without being tested. The resort was unfit for human habitation and clearly below the standards set by the World Health Organisation (WHO) for a quarantine facility.
AfriForum brought a court application against the minister of health and others to put an end to the group’s effective ‘captivity’ in ‘appalling’ conditions. By the time the matter came before the Pretoria High Court on 6th May, tests had been conducted and their results made available.
Judge Hans Fabricius ordered that all citizens who had tested negative, as well as those who had tested positive, should be allowed to self-isolate. If this was not possible, those who had tested positive should be taken to a quarantine facility that complied with WHO standards. The Zithabiseni facility was not to be used again until it had been ‘restored for human habitation’ and made WHO compliant.
Government support for coerced quarantine
Despite such evidence of abuse, KwaZulu-Natal premier Sihle Zikalala threatened in late April to terminate self-isolation in the Durban area, saying: ‘The issue with self-isolation – we are saying it is coming to an end. Once we have discovered that you have tested, we take you, and that is the end. Up and until you recover, we release you back into the community.’ This would apply in the ‘big townships as well as the suburbs’ of the eThekwini District, and violations would be met with ‘concomitant punishment’.
The premier backed down after AfriForum threatened to challenge his decision in court. But the risk of compulsory state quarantine now seems to be returning, as indicated by the health minister’s speeches earlier this week.
Said Dr Mkhize in his Western Cape speech last Saturday: ‘We are going to put people in field hospitals… People will be kept in hospital, not because they need treatment, but until they are past the point where they are infectious.’ He did, however, qualify this by saying that state quarantine would apply only to individuals that doctors considered unable to ‘self-isolate properly’. This is an important qualification.
Yet the Level 4 regulations sometimes omit this qualification – and are both confusing and coercive. According to one clause, people who have tested positive or are suspected of having the disease may not refuse to ‘be admitted to a quarantine or isolation site’. No exception is made for those with the capacity to self-isolate.
People who fail to comply ‘must be placed in quarantine for 48 hours, pending the issuing of a warrant by a local magistrate. This warrant allows only for compulsory testing, but people are nevertheless denied a choice about being sent to state isolation or quarantine camps.
This clause is buttressed by another stating that those ‘suspected to be infected or contaminated with Covid-19’ must comply with the ‘written directions’ of an ‘enforcement officer’ to go to specified state isolation sites or quarantine facilities and remain there until their Covid-19 status has been determined. Those who refuse to do so may seemingly be ordered by a magistrate to comply. Self-isolation is, however, allowed if this is instructed by a medical practitioner or nurse.
These regulations are badly drafted and wide open to abuse. Officials with apparent grudges and a willingness to lie should not be empowered to incarcerate victims of the virus in sub-standard state quarantine facilities and expose them to even greater harm.
The regulations are also inconsistent with international best practice, in conflict with guaranteed rights, and ultra vires the Disaster Management Act – which authorises only those interventions that are ‘necessary’ to combat the pandemic.
SAMA has criticised Dr Mkhize’s proposal that asymptomatic people who have tested positive must be kept in state hospitals until they are no longer infectious. This approach is ‘illogical’, it says.
Hospital admissions should ‘never be the default,’ as scarce hospital resources must be used ‘more judiciously’. Adds SAMA: ‘Self-isolation at their homes is advised and is completely appropriate.’ It is only if this is not practicable that alternatives are required.
Forced admission into state hospitals for those found to be infected is also sure to spark widespread resistance to being tested. Drs Williams and Olivier emphasised this risk in seeking their release from the Modimolle MDR-TB facility, saying:
‘If it were known to ordinary South Africans that a positive test in Limpopo Province immediately and without exception means that one is detained in solitary confinement, locked in a room for 24 hours of the day with access only to insufficient food, with no exercise, no medical treatment and no access to essentials,…it would cause many persons to avoid being tested for fear of being treated in this manner. This would have the opposite effect of what is presently urgently required to effectively deal with the pandemic.’
Already there is evidence that such fear is spreading. According to Professor Shabir Madhi, professor of vaccinology at Wits, roughly 30% of the people being screened for Covid-19 symptoms in Soweto are refusing to be tested for fear of what would happen to them if the result was positive. ‘Coercion is undermining the country’s response to the virus’, he says.
Coercion goes far beyond this particular issue, of course. The government’s entire approach is based on coercion, from its prohibition of all economic activities it declines to authorise to its deployment of much of the police and army to enforce a night-time curfew and a host of irrational restrictions with little capacity to halt the spread of the virus.
Keeping Liberty Alive through Covid-19 and beyond by Dr Jeffery, is published by the IRR today.