The outbreak of a new strain of influenza A (H1N1, commonly referred to as swine flu) in Mexico has raised fears of a new global pandemic. On 29 April, the World Health Organisation (WHO) raised its alert status to Phase 5, which, according to the WHO Global Influenza Preparedness Plan, is “a strong signal that a pandemic is imminent and that the time to finalize the organization, communication, and implementation of the planned mitigation measures is short”. It is therefore timely to consider how the New Zealand Government’s legislative framework is placed to respond to the threat or emergence of a new epidemic.
The Government’s emergency powers were last scrutinised in 2006, when avian influenza threatened to emerge as a pandemic. The Government subsequently introduced the Law Reform (Epidemic Preparedness) Bill, which became the Epidemic Preparedness Act 2006. It is fair to say that in the event of a threat or emergence of a new epidemic, the Government has the necessary powers to manage the health of the population and ensure the country’s stability. However, any proposed exercise of emergency powers raises the question – to what extent should a person’s individual rights and liberties be limited for the benefit of the community as a whole? This raises some interesting issues in terms of the application of the New Zealand Bill of Rights Act 1990 (BORA).
Swine flu in New Zealand
The Ministry of Health’s current status for swine flu is Code Yellow, a standby phase used to alert the health sector when there has been a significant development in the virus overseas, or single isolated cases in New Zealand. To date, there have been nine confirmed cases of swine flu in New Zealand, all of which have been treated and have fully recovered (Ministry of Health, Influenza A (H1N1) Swine Flu – Update Forty-Five, 21 May 2009).
On 29 April, the Government took steps to upgrade the status of swine flu to a quarantinable disease, notifiable to the Medical Officer of Health. The Health (Non-Seasonal Influenza) Order 2009 (SR 2009/113) adds all “non-seasonal influenza (capable of being transmitted between human beings)” to the lists of notifiable and quarantinable diseases under the Health Act 1956. This includes swine flu, as well as any other form of non-seasonal influenza transmitted between human beings.
The Epidemic Preparedness Act 2006
The Law Reform (Epidemic Preparedness) Bill had two main objectives, namely (2006 NZPD 636, 6900):
(a) To ensure that legislation is sufficient to manage the health risks associated with the outbreak and spread of disease, in particular, infection control; and
(b) To plan for the disruptions to society that may occur in the event of a pandemic.
The Bill received cross-party support in Parliament, and the Law Commission made a significant contribution to the process throughout the Select Committee’s considerations. There was intense scrutiny of the Bill’s implications for rights and freedoms affirmed in the BORA. As the Honourable Pete Hodgson, then Minister of Health, said (2006 NZPD 636, 6900):
“The rights of people in our communities have to be weighed against individual rights. The bottom line is that people in our communities deserve a good degree of protection from being unnecessarily infected with a dangerous disease, so some of the measures in this bill will infringe on the personal liberties of some individuals in order to prevent them from unnecessarily infecting others.”
The Bill strengthened the emergency powers of the Medical Officer of Health under the Health Act to respond to the threat or emergence of an epidemic, and introduced the concept of ‘epidemic notices’.
Epidemic notices and immediate modification orders
The Epidemic Preparedness Act enables the Prime Minister to issue an epidemic notice, with the consent of the Minister of Health, when satisfied that an outbreak of a stated quarantinable disease (as defined in the Health Act) is likely to significantly disrupt or continue to disrupt essential governmental and business activity in New Zealand, or parts of New Zealand (section 5(1)). An epidemic notice remains in force for three months unless renewed or otherwise specified by the Prime Minister (section 5(3)). The Prime Minister may issue an epidemic notice even if the outbreak has occurred overseas, and has not reached New Zealand’s shores (section 5(2)). Under section 5(4), the Prime Minister must also consider the written recommendation of the Director-General of Health before issuing an epidemic notice.
The effect of an epidemic notice is two-fold:
(a) It engages the emergency powers of the Medical Officer of Health under the Health Act; and
(b) It enables the Governor-General, by Order in Council on the recommendation of the responsible Minister, to issue modification orders, which can, with immediate effect, modify any requirement or restriction imposed by any enactment (section 15(1)).
The ability to issue immediate modification orders is subject to a number of statutory safeguards. First, an immediate modification order cannot modify any requirement or restriction imposed by the Bill of Rights 1688 (Imp), the Constitution Act 1986, the Electoral Act 1993, the Judicature Amendment Act 1972, the BORA, or the Epidemic Preparedness Act itself (section 15(3)(c)). It can, however, modify a procedural requirement or restriction relating to a person in custody or detention, even if it has the effect (direct or indirect) of keeping the person in custody or detention longer than he or she otherwise would have stayed (section 15(4)).
Secondly, pursuant to section 15(2)(b), the Governor-General must not issue an immediate modification order that modifies any enactment unless he or she has received a recommendation from the responsible chief executive, and is satisfied that:
(a) The effects of an epidemic are, or are likely to be, such that the requirement or restriction is impossible or impracticable to comply (or comply fully) with; and
(b) The modifications it makes go no further than is, or is likely to be, reasonably necessary in the circumstances.
The Governor-General may also issue immediate modification orders to enactments administered by the Ministry of Health, if the Director-General of Health is satisfied that it is, or is likely to be, necessary to enable the effective management of the quarantinable disease or its effects (or both) (section 14(2)).
Finally, all epidemic notices and immediate modification orders are subject to Parliamentary scrutiny. The Prime Minister must, as soon as possible, present a copy of an epidemic notice to Parliament (section 5(5)), and section 6 provides procedures for Parliament to meet urgently if it is adjourned, prorogued, dissolved, or has expired at the time an epidemic notice is issued. Every immediate modification order must be presented to Parliament as soon as practicable (section 16), and a Member of Parliament may give a notice of motion to disallow any such order within six sitting days after the date on which it was made (section 17).
Emergency powers of the Medical Officer of Health
The Medical Officer of Health has broad powers under the Health Act (as amended by the Epidemic Preparedness Act) to act in response of the threat or emergence of a new epidemic. Amongst other things, these include the power to:
• Require a person to undergo a medical examination (section 70(1)(e)) or, where the spread of the disease would be a significant risk to the public, medical testing (section 70(1)(ea));
• Require persons, places, buildings, ships, vehicles, aircraft, animals, or things to be isolated, quarantined, or disinfected (section 70(1)(f));
• Require people to remain in quarantine until they have been medically examined and found to be free from infectious disease, and until they have undergone any prescribed preventive treatment (section 70(1)(h));
• Close any premises (section 70(1)(la)) or all premises within a certain area (section 70(1)(m)(i)-(ii));
• Forbid people to congregate in outdoor places of amusement or recreation, whether public or private (section 70(1)(m)(iii)-(iv)); and
• Take possession of personal property including land, buildings, vehicles medicines, and other things, for purposes including the accommodation or treatment of patients, disposal of bodies, and transportation of patients, medical personnel, medicine etcetera (section 71(1)).
These powers are automatically engaged when an epidemic notice is issued. They can also be exercised with the approval of the Minister of Health.
The Medical Officer of Health also has the power to order the removal of any person to a hospital for isolation if he or she has reason to believe or suspect that the person, whether suffering from an infectious disease or not, is likely to cause the spread of any infectious disease (section 79). Any person arriving to New Zealand on a craft from overseas is liable to quarantine (section 97), and any persons suspected of being infected with a quarantinable disease can be required to undergo medical examinations and provide bodily samples (section 97D). These powers do not require an epidemic notice or consent from the Minister of Health.
Rights and freedoms protected by the BORA
The emergency powers conferred under the Health Act and the Epidemic Preparedness Act are broad and conflict with many of the rights and freedoms affirmed in the BORA, including:
• The right to refuse to undergo any medical treatment (section 11);
• The right to freedom of association (section 17);
• The right to freedom of movement (section 18);
• The right to be secure against unreasonable search or seizure of property (section 21); and
• The right not to be arbitrarily arrested or detained (section 22).
So how do the broad powers given to the Government under the Health Act and the Epidemic Preparedness Act interface with the freedoms and rights affirmed under the BORA?
This issue was considered by the Attorney-General when the Law Reform (Epidemic Preparedness) Bill was introduced into Parliament, in accordance with section 7 of the BORA (see Attorney-General, Consistency with the New Zealand Bill of Rights Act 1990: Law Reform (Epidemic Preparedness Bill) (4 April 2006)). Not surprisingly, the Attorney-General found that aspects of the Bill were inconsistent with rights contained in the BORA. Specifically, the Attorney-General considered that the ability of the Medical Officer of Health to take a bodily sample from a person liable to quarantine was inconsistent with the right to refuse medical treatment. While “medical treatment” is not defined by the BORA, the Attorney-General (citing Rishworth et al, The New Zealand Bill of Rights (Oxford University Press, 2003) at 256) accepted that the definition includes the non-invasive examination of a person and the taking of a bodily sample for the purpose of assessment and diagnosis. (Neither the Health Act nor the Epidemic Preparedness Act provide for compulsory medical treatment beyond examinations and taking samples. For example, under section 70(1)(h) of the Health Act, a person who exercises his or her right to refuse medical treatment can be kept in quarantine, but they cannot be forced to undergo treatment. However, there is a bill currently before Parliament, the Public Health Bill 2007, which includes provisions that provide for compulsory treatment in some circumstances.) The Attorney-General also found that the power to forbid people congregating in outdoor places of amusement or recreation may limit the right to freedom of association, and that the power to redirect aircraft, require persons to remain in quarantine, and to close premises may limit the right to freedom of movement.
However, the Attorney-General concluded that the limits placed on rights and freedoms by the Law Reform (Epidemic Preparedness) Bill were justified in accordance with section 5 of the BORA. Of course, the Attorney-General was not required to consider the provisions of the Health Act.
Section 5 of the BORA provides that rights and freedoms affirmed in the BORA may be subject to reasonable limits prescribed by law where they can be demonstrably justified in a free and democratic society. The Supreme Court in R v Hansen [2007] 3 NZLR 1 (SC) considered the application of section 5, and Justice Tipping concluded that in order for a limit on a right to be justified under section 5 (at [121]):
(a) There must be a sufficiently important objective to justify curtailment of the right; and
(b) The means chosen to achieve the objective must be proportionate to the objective.
Clearly, the protection of the public health in the face of an epidemic is an important objective. The question is whether the means chosen to achieve the objective are proportionate. This requires consideration of whether the limiting measure is rationally connected with its purpose, whether the limiting measure impairs the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose, and whether the limit is in due proportion to the importance of the objective (Hansen at [104]).
In considering clause 5 of the Bill (now section 5 of the Epidemic Preparedness Act), the Attorney-General’s advice was (at paragraph 83):
“In our opinion, for a public health emergency to justify derogating from human rights the situation must be of an exceptional and temporary nature. Moreover, the threat posed by the emergency must be actual or imminent and affect all branches of the life of the community…”
(Emphasis added)
In the event of an epidemic, certain restrictions on individuals’ rights and freedoms are to be expected. The extent to which those limitations are justified must, however, be a matter of degree. How serious must an outbreak be before a New Zealand town or city can be quarantined? Before New Zealanders are forcibly detained and are forced to undergo medical procedures? How serious must a disruption to governmental and business activity be before statutory requirements are modified?
Neither the Health Act nor the Epidemic Preparedness Act define “pandemic”. The Ministry of Health explains that an influenza pandemic occurs when a new strain of influenza virus emerges, spreading around the world and infecting many people at once (see http://www.moh.govt.nz/pandemicinfluenza). Relatively minor epidemics of influenza typically occur in New Zealand during winter months (Parliamentary Library Research Paper: Human Influenza A (H1N1) (Swine Flu) (13 May 2009)).
Interestingly, the Prime Minister need only be satisfied that “the effects of the outbreak are likely to significantly disrupt essential governmental and business activity in New Zealand” before issuing an epidemic notice. This may not necessarily depend on the severity of the disease: in theory, an epidemic could be disruptive in the short-term without posing long-term risks to public health. Further, as noted above, the epidemic does not even need to have reached New Zealand (section 5(2) of the Epidemic Preparedness Act). But clearly it would be difficult to justify imposing limits on rights affirmed under the BORA in respect of an epidemic which had not reached New Zealand and/or which posed little long-term risk to public health.
NZLawyer, issue 113, 29 May 2009