TB, the rights and entitlements of individuals (Community and the patients):
Problem statement (The ferocious nature of MDR and XDR TB)
Tuberculosis, commonly known as TB, is a bacterial infection that can spread through the lymph nodes and bloodstream to any organ in your body. It is most often found in the lungs. Most people who are exposed to TB never develop symptoms because the bacteria can live in an inactive form in the body.
The above in its very nature therefore makes the disease ferocious in nature thus making both sufferers and those without it needing to have rights that can be helpful to both parties.
Much as human rights are in themselves violated in different proportions, or maybe even less violated, there should be set standards to curb any form of violation or control rights of all civil liberties among which include “Individual rights and entitlements of people living with and vulnerable to TB.
In view of the above, there are limiting rights and freedoms to TB patients which result to health emergencies.
The right to the highest attainable standard of health is the recognition that human rights are necessarily interdependent and that the social determinants of health are important to the promotion of health itself. (Diego S.Silva, Maxwell J.Smith).
There are other freedoms and rights like food and housing which address integral components of the right to health.
The right to health also includes the right to control the spread infectious diseases (TB) via a variety of control measures, some of which are restrictive (GC 14).
However, the use of restrictive measures which could be applied due to advent of an outbreak say of TB in an area could include measures like; quarantine, isolation and travel prohibitions restricts or limits basic human rights prescribed by the Universal Declaration of Human Rights such as freedom of movement (Article 13) and the right to peaceful assembly (Article 20) for the sake of protecting and promoting the health of individuals and communities.
Therefore, for the rights of those who may not be having the disease, limitations on the rights and freedoms are justified on the basis that restrictive measures are sometimes required to protect the public’s health during emergencies as articulated not only in GC 14 but also in the International Covenant on Civil and Political Rights(ICCPR).
It should be noted that limitations are intended to protect the rights of individuals rather than to permit the imposition of limitation by states and that states have the burden of justifying such serious measures i.e. they must demonstrate that restrictive measures are necessary to curb the spread of infectious diseases (TB) so as to ultimately promote the rights and freedoms of individuals.
It should however be noted that any limitations must be proportional i.e. the least restrictive alternative must be adopted and should be of limited duration being subject to review.(Paragraph 29 GC14).
Conditions specific that seek to legitimize the limitations on the grounds of public emergencies as found in articles 12,19,21 and 22 of the ICCPR including public health emergencies are articulated in the Siracusa principles on the Limitation and Derogation Provisions in the International covenant for Civil and Political Rights- hereafter the “Siracusa Principles” .
The Rights for both TB Sufferers and those that do not have the disease can be neutralized helping both parties by putting the “Siracusa Principle” in place to work in-tandem with the law based on a legitimate objective; strictly necessary in a democratic society; the least restrictive and intrusive means available and not arbitrary, unreasonable or discriminatory. (Lawrence Gostin).
This therefore enables us further observe that in observance of human rights in the above regard, the ideas of necessity and proportionality found in the Siracusa Princples were explicitly adopted in GC14, paragraphs 28 and 29.
Much as the Seracusa principles are in themselves quite a tool in ensuring rights for both TB Patient’s Rights and those without, they themselves are not enough to legitimize restrictions on human rights to curb the spread of infectious diseases (TB).
There for then comes about an argument that can be argued for that brings to light about the principle of Reciprocity which has been used with increased frequency in the public health ethics literature which in itself provides an important theoretical tool to help legitimize restrictions as articulated in the Seracusa Principles.
Briefly explaining about the “Principle of Reciprocity” in the context of public health, this is a one, Reciprocity maintains that when an individual is subject to a limitation on their human rights or freedoms for the sake of public health emergency, the state must support and compensate the individual for his or her loss, so they are not unduly harmed.
Reciprocity can therefore clarify the “least restrictive means clause” already present in the Seracusa Principles and by extension the proportionality claim in article 29 of the ICCPR.
Reciprocity and the Seracusa Principles (in light of Rights of TB patients/those without the disease):
Restrictive measures which limit certain human rights are justified in the case of infectious disease outbreaks because their application can likely arrest the spread of an infectious disease. This is clarified in Article 25 of the Seracusa Principles, which states that the rights and freedoms can be limited to allow the state to take measures dealing with a serious threat to the health of the population. The aims should be specifically aimed at preventing disease or injury or providing care for the sick and injured.
Public health scholars however argue that the principle of Reciprocity must also be satisfied to legitimize the use of restrictive measures during public health emergencies.
In the simplest formulation, Reciprocity demands an appropriate balancing of the benefits and burdens of social cooperation necessary to obtain the good of public health and requires that one returns the good one has received or responds to harms performed in a befitting manner.
In the context therefore of using restrictive measures to arrest the spread of infectious diseases (TB), Reciprocity demands that society provides resources such as food and water to those burdened by restrictive measures like isolation or quarantine.
This would ensure that(a) restricted individuals are not left to struggle on their own for survival, and (b) the burden of abiding by restrictive measures edicts is diminished, which may render those measures more likely to be followed, constituting an imperative instrumental benefit to society.
If society does not discharge its reciprocal duties to support those burdened by restrictive measures, then those measures are deemed illegitimate and unethical.
It’s further argued however that the Principle of Reciprocity also provides further normative impetus to the “Siracusa Principles” requirement that limitation of rights and freedoms be proportionate to the nature and extent of the public emergency (as per Articles 10(d) and 51).
The clearest claim for a proportionate response in the Siracusa Principles is found in the “least restrictive means clause”-Article 11- which reads:
“In applying a limitation, a state shall use no more restrictive means than are required for the achievement of the purpose of the limitation”.
The “least Restrictive clause” however could be interpreted as curtailing the degree of limitations a state can impose on a person to the very least amount of interference and disruption associated with a particular human right, for instance; freedom of movement.
However, stated differently under this interpretation of the clause, those whose rights are being limited still have a negative right of least interference from the state in its fulfillment of public health measures as understood in the Siracusa Principles. A good example of this is;
If the spread of a particular airborne infectious disease can be adequately arrested through the use of say masks without restricting interaction with others, then that person should not also be subjected to complete physical isolation from other people.
In case the Principle of Reciprocity is accepted and adopted, then persons subject to isolation orders have a positive right to measures that would lessen any real limitations to their human rights.
In the above sense therefore, the duty of the state not to impose any restrictions beyond the minimum necessary to protect the public would include the duty to provide at least those basic life necessities to individuals whose human rights are restricted for the public good.
An example would be when a TB patient is ordered to stay at home either as part of his or her isolation or quarantine orders, not having food delivered to him/her would impose a greater burden than if food was provided to him/her by the state.
It should further be noted as well that if a patient (TB) is given or delivered to food by family/friends (depending on whether this patient would be having a family/friend), this in itself can look or appear as a charitable act yet as a right, the patient would need deliverables as a right to him/her.
In the context of applying restrictive measures, as the state is generally held as the only legitimate authority to impose such measures, it would also appear then to follow that the state also bears the responsibility to discharge its obligation to support and compensate those individuals that have been justifiably restricted. Providing food and other basic necessities minimizes the restriction.
The justification for the above robust version of the least restrictive means clause of the Siracusa Principles is therefore based on the “Reciprocity Principle”.
It can be maintained however that the Siracusa principles alone are insufficient to legitimize restrictions on human rights to curb the spread of infectious diseases. It can be argued that the law of reciprocity which has been used with increased frequency in the public health ethics literature, provides an important theoretical tool to help legitimize restrictions as articulated in the Seracusa Principle.
Relatedly, it can be noted that a state like Liberia may invoke for limiting rights to protect the health of its own citizens. However, other neighboring states such as neighboring Cote d’voir might also benefit from rights-limiting measures implemented and justified by individual states like Liberia. Sealing borders and restricting travel, whether a country like Liberia implements such measures or an external country imposes them(for example during the recent EVD outbreak, Cote D’voir closed its borders and restricted travel to affected countries) illustrates that the justification for limiting rights may include the protection of those outside the affected jurisdictions.
The above however raises the question of whether Reciprocity in the context of global health can be extended to include moral though perhaps not legally binding obligations on other states to support those affected by infectious disease outbreaks like TB.
The obligation to support and reduce the functional amount of limits on basic human rights should not be borne solely by those states involved in justifiably limiting their citizen’s rights but rather by the broader international community that benefits from such measures. Such an extension of the Principle of Reciprocity beyond boarders may be in keeping current trends in human rights scholarships toward conceptualizing the promotion and protection of rights and freedoms via extraterritorial obligations, i.e. obligations of state x to help state y fulfill its human rights obligations as maintained in the Maastricht Principles on Extraterritorial Obligations of states in the area of Economic, Social and Cultural Rights. GC 14 specifically maintains that the international community ought to support those states affected by health emergencies;
Paragraph 40 reads thus:
Given that some diseases are easily transmissible beyond the frontiers of a State, the international community has a collective responsibility to address this problem. The economically developed states parties have a special responsibility and interest to assist the poorer developing states in this regard.
As such, the collective responsibility of the International Community to support affected states during infectious diseases outbreaks might extend the need to support these affected states discharge their obligations under the principle of Reciprocity.
There is need to rely heavily on restrictive public health measures to curb the spread of infections now and in the future. Infectious diseases with very little or no effective treatment that are capable of causing high rates of mortality for example drug resistant strains of TB will likely require renewed consideration of the ethical justifications and legitimate conditions for isolation and other restrictive measures which ultimately limit certain human rights. Ethical principles such as Reciprocity need to be carefully considered as potential though imperfect remedies for such limits, which would also be in keeping with a robust interpretation of the least restrictive means clause already present in the Siracusa Principles.
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