SARS: Accepted Principles Can Guide Our Response to the Outbreak

Michael Davis (Professor, Chinese University of Hong Kong) and
Raj Kumar (Lecturer, City University of Hong Kong)

While atypical pneumonia is spawning official concern in several countries abroad, it is reaching a crisis stage and severely testing public health authorities in Hong Kong. Authorities in the special administrative region (SAR) are working hard to arrest the spread of the outbreak and doctors have faced the difficult challenge of treating patients while avoiding contracting the disease themselves. What started as a public health and medical problem today poses a challenge to governance and human rights in both the mainland and Hong Kong.

There may be a tendency, when faced with life-and-death decisions, to dismiss human rights as a frivolous concern. But a closer look reveals that such standards have important implications for both limiting the spread of atypical pneumonia and defining the boundaries of the costs it has inflicted. Even before the severity of the public health crisis was known, deficiencies in governance and human rights set the tone of the challenge. On the mainland, the lack of public information and democratic institutions was sorely felt when the emerging health crisis was kept largely under wraps for several months.

Nobel laureate Amartya Sen has long warned of the importance of a free press and democracy in avoiding crises and addressing them when they do occur. Adequate public information may allow and encourage an appropriate response. Some have worried that Hong Kong's initially tepid response was encouraged by a reluctance to point fingers too directly at the mainland.

A variety of rights, including the right to transparency in governance, the right to information and the right to health, are clearly involved in this unfolding crisis. At this stage, the right to health must take centre stage in policy deliberations. As a general proposition, the International Covenant on Economic, Social and Cultural Rights "recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health". Article 12 of the covenant requires that the state take steps for the "prevention, treatment and control of epidemic {hellip} and other diseases" and "the creation of conditions which would assure to all medical service and medical attention in the event of sickness".

While it seems the expanding outbreak and the growing number of deaths have finally focused the attention of both levels of government, the track record, to date, has been uneven. On the mainland, attempts to hide the crisis have put innumerable people at risk. In Hong Kong, the initial sin was more one of official uncertainty as to the seriousness of the crisis. The strong measures that, in hindsight, were needed have now begun to be instituted.

Fulfilling the human right to health in the case of atypical pneumonia means the SAR government has to take all appropriate measures - legislative, administrative, budgetary and judicial - towards safeguarding the right to health. Both the Basic Law and the Bill of Rights recognise that restrictions on people's rights may be allowed in the interest of public health and safety. On this basis, it may be argued that certain quarantine and travel restrictions are permissible. But these cannot be excessive. Restrictions on personal freedom should be at the level necessary to deal forcefully with the crisis and no more. The restrictions should not target any group unfairly. There should be adequate compensation for those who suffer official deprivation in the public interest. And public information must be maintained at a high level. Quarantines may be necessary for maintaining public health even though they interfere with people's freedom of movement and restrict their rights when a serious communicable disease is involved. In such cases, these measures are legitimate under international human rights law.

On the other hand, certain arbitrary measures taken by public health authorities - without considering less intrusive alternatives - may abuse human rights principles and good public health practices. A useful guideline for divining the boundaries of legitimate action and permitted restrictions is the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, adopted in May 1984 by a group of international human rights experts. According to the Siracusa Principles, when a government limits the exercise or enjoyment of a right, this action must be taken only as a last resort and will only be considered legitimate if the following criteria are met: the restriction is provided for and carried out in accordance with law; it is in the interest of a legitimate objective of general interest; it is strictly necessary in a democratic society to achieve the objective; there are no less intrusive and restrictive means available; and the restriction is not imposed arbitrarily, in an unreasonable or otherwise discriminatory manner.

Siracusa Principles 25 and 26 say public health may be invoked as grounds for limiting rights in order to allow a state to deal with a serious threat to the health of the population or individual members of the population. These measures must be specifically aimed at preventing disease or injury or providing care for the sick and injured; and due regard must be paid to the international health regulations of the World Health Organisation.

The SAR government is justified in taking all possible measures to treat the outbreak and restrict its proliferation. These measures need to be based on determinable standards rather than on panic and surmises. Moreover, the government ought to take the initiative when it comes to providing information to the public. An additional human rights concern is that foreign governments or companies not take excessive measures to restrict the coming and going of SAR citizens. An international newspaper's recent editorial advocating the quarantine of all China, including Hong Kong, was clearly excessive. As in Hong Kong itself, any foreign restrictions should specifically target the need at hand and not be excessively restrictive. Broad discrimination against all Chinese people for a disease that has reached only a small fraction of the population in several countries would clearly be excessive.

(This article originally appeared in the April 4, 2003 issue of South China Morning Post in Hong Kong and is reproduced here with permission from the publisher)