JURIST Guest Columnist Stefan Kirchner, of the University of Lapland in Finland, discusses the possibility of global discrimination during the ongoing Ebola outbreak …
The current Ebola outbreak has lead to discrimination against those infected with Ebola as well as against health care workers caring for those infected or suspected of being infected with Ebola. Discrimination based on health reasons is hardly a new phenomenon. It has culminated in countries, which do not allow at will abortion, to permit abortion in cases where the health of the child is only marginally affected. This discrimination is also present in the outright celebration of suicide as a form of self-determined approach to sickness, where there appears to be a greater expectation of health and a lack of acceptance of illness.
While nurses, physicians and others risk their lives to fight highly infectious diseases; elsewhere it is not the disease but those affected by it who are targeted. While there is not yet a cure for HIV/AIDS, at least some patients in developed countries (a small percentage of those infected with HIV globally) have access to the full range of medical options and may start to consider HIV to be a chronic disease. Essentially, it has become possible to delay the outbreak of AIDS after an HIV infection for many years. However, HIV/AIDS will continue to provide medical and legal challenges so long as a fast, effective treatment remains globally unavailable to all affected patients.
If HIV patients are enabled to live longer, healthier lives, they will be more likely to remain part of the workforce. If the search for a cure will take many years, HIV-positive employees will become a more common phenomenon. In many legal systems this already raises the question: Under which conditions do employees have a duty to inform their employers about their infection? While information about HIV is more easily available today than in the past, the stigmatization of HIV-positive persons continues.
In I.B v. Greece, decided late last year, the European Court of Human Rights heard the case of an applicant who had lost his job after his co-workers learned about his HIV-infection. Article 14 of the European Convention on Human Rights (ECHR) protects against discrimination. The right to a private life, protected under Article 8. Article 14 sets out a number of examples where discrimination will be found, but also includes what the Convention refers to as “other status” within its meaning. This includes a person’s health status. Not providing the totality of rights established under the Convention due to the fact that somebody is HIV positive is discrimination under Article 14, as a person’s health status is part of the right to private life under Article 8.
Infectious diseases also have wider legal implications. While it might be difficult to successfully litigate before the European Court of Human Rights for a state’s failure to prevent infections, doing so remains a possibility. Especially when it comes to infections that occur while a state has control over an individual; for example, during a detention, military service or when medical staff works on behalf of the state. In the case of the current Ebola outbreak, the non-governmental organization Medecins Sans Frontieres/Doctors Without Borders (MSF) has taken the lead in the international effort to fight the disease and several nations are sending hundreds of experts to the affected countries. Under Article 2 of the ECHR, which protects the right to life, nations have an obligation to equip their staff, in the widest sense of the term, adequately with the required protective gear. The same principle applies to the deployment of armed forces in combat. Unlike a case under the UN’s International Covenant on Economic, Social and Cultural Rights, the right to life is not a social human right that could be limited by the available resources. Rather, this is an immediate obligation regardless of a nation’s financial possibilities. This does not mean that volunteers for MSF, the Red Cross or others are not protected in a similar way: Their employers or sending organizations have an obligation to equip them adequately and states have a duty under Article 2 of the ECHR to ensure that this happens.
Ebola differs significantly from HIV in that the risk of an infection with Ebola is present in day-to-day interaction; such as shaking hands, while becoming infected with HIV is much more difficult. It appears justifiable under the ECHR to limit the activities of persons infected with Ebola and those reasonably suspected of being infectious. In the context of the current outbreak, there have been calls for limitations on international travel, ranging from refusing to permit infected persons entry into countries where they could actually receive highly qualified medical treatment, to the idea of closing international borders completely. The latter possibility would not be compatible with the ECHR as, at the time of this writing, there have been only a few cases of secondary infections outside the most affected countries, which does not warrant a complete halt to international traffic.
In any case, the human dignity of all patients must be protected at all times. For Ebola patients, this is often set aside due to fears concerning Ebola. Here the state has a duty to create an environment in which discrimination is prevented. This includes an obligation to inform the general population, but to also extend legal protections to health care workers by private actors such as landlords, shop owners and others who may discriminate against them.
Attempts to curb Ebola include quarantining both patients and those suspected of being infected. In an HIV context, the European Court of Human Rights already dealt with quarantine for the purpose of preventing the spread of a viral disease: Detaining a person has to be the “last resort in order to prevent [them] from spreading the [disease and] less severe measures [must have] been considered and found to be insufficient to safeguard the public interest.” Also, “a fair balance between the need to ensure that the [disease] did not spread and the applicant’s right to liberty” is required by the European Court of Human Rights. In Enhorn v. Sweden, the manner and length of the detention were taken into account. Although the court found Sweden at fault for hospitalizing an HIV positive man for a year and a half, quarantining suspected carriers of the Ebola virus for the duration of the incubation period of 21 days would seem to be compatible with the ECHR, especially in light of the dangerous nature of Ebola.
Infectious diseases remain an important and often global health care challenge and in a globalized and highly mobile and interconnected world diseases like bird flu, swine flu, Ebola, HIV and other diseases are likely to be spread more quickly than in the past. At the same time globalization allows the world to react better to health emergencies. Rather than being split by fear of infection, such diseases should bring the world closer together in the fight against disease. Human rights norms, such as the European Convention on Human Rights, provide a legal obligation to take action and to protect the ill.
Stefan Kirchner is Associate Professor for Fundamental and Human Rights at the Faculty of Law of the University of Lapland in Rovaniemi, Finland. A former Rettungssanitäter (Emergency Medical Technician) with the German Red Cross, he wrote his Doctoral thesis in Social Sciences on Biolaw and the European Convention on Human Rights and his Master Thesis on pharmaceutical intellectual property rights. Dr. Kirchner is admitted to the bar in Germany (Rechtsanwalt) and specializes in proceedings before the European Court of Human Rights.
Suggested citation: Stefan Kirchner, Ebola, Human Rights and Health Discrimination , JURIST – Academic, October 20, 2014, http://jurist.org/academic/2014/10/stefan-kirchner-health-rights.php.
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