Are we allowed to seal 11 million people away from the outside world because of a virus?
‘Yes – and in the case of China, I would assume that everything took place in accordance with national laws and under national authority. International law, however, can also justify establishing quarantines to combat cross-border outbreaks of a disease.
In those cases, measures would have to be put in place with due care, respecting the rights of citizens and patients and with the aim of mitigating the serious suffering and impact of a major virus outbreak. The coronavirus is a new virus. We don’t quite know yet what its impact can be, how fast it spreads and how sick it can make people and in what circumstances people die.’
Can measures like quarantines, screening on aircraft, heat scans and compulsory medical examinations be put in place arbitrarily?
‘No – these types of measures aren’t put in place arbitrarily, but there can be indications pointing to their necessity, which is why they are laid down in law, especially now the World Health Organization has declared an international public health emergency. This is a good starting point to ensure that the new virus doesn’t spread any further.
It is crucial, however, that the law also include a provision that gives people the option to refuse quarantine and compulsory medical examination. Nevertheless, if someone really poses a significant threat, the court may rule that the person must undergo medical treatment anyway – although that kind of scenario won’t occur very often. Most people don’t want to infect other people and will want medical care themselves when they’re sick.’
Could these measures also be implemented in Europe or the Netherlands?
‘Yes, absolutely. In the Netherlands, we have the Public Health Act, which provides for precisely these types of scenarios. The Act also requires national authorities to cooperate with international partners. The regulatory framework to which the Netherlands is bound through the European Union gives the Dutch government insight into where in Europe the virus has surfaced. These countries jointly agree on which measures to take, such as quarantines and the tracing of any people that patients have been in contact with.
The Erasmus University Medical Center in the Netherlands is currently the designated centre for the entire European Union for the identification of the new virus. If someone is found in another EU country who is suspected to have contracted the coronavirus, a sample will be sent to Erasmus MC for identification. Moreover, the EU has also made available a substantial budget for a vaccine to be developed for the entire European Union.
Approval of a pandemic vaccine or new anti-viral drugs is also a decision that is taken jointly by the EU Member States. At the moment, the EU Civil Protection Mechanism has been activated as well, allowing EU countries to help one another if large numbers of patients should arise somewhere or if hospitals are no longer able to cope.’
Is the current legal system equipped to deal with a massive outbreak?
‘My impression is that, in the Netherlands, the balance between the protection of public health, on the one hand, and patient rights, on the other, is quite carefully regulated by the Public Health Act. I do think, given the fact that a large number of hospitals have merged or closed in recent times, that our ability to absorb large numbers of patients may have been reduced.
A lot has changed in the EU since SARS and swine flu in terms of legislation and opportunities for cooperation. I believe that this has truly improved the quality of the joint decision-making process of EU countries and that a great deal stands to be gained by working together in a European context in respect of infectious diseases, especially when it comes to knowledge sharing, joint procurement and development of medicines and joint development of policies.
Although rapid approval of pandemic medicines is provided for in EU regulations, the external/international dimension has not yet been included very explicitly in that regard. For example, India is one of the largest producers of vaccines in the world. When it comes to the rapid access of a pandemic vaccine from India to the EU market, and to the rest of the world, specific considerations need to be made and special agreements and regulations need to be put in place.
To what extent does your research contribute to improvements?
Within the INDIGO Project (H2020 -375K), we as a faculty and through the Amsterdam Centre for European Law & Governance are able to contribute to shaping an effective regulatory framework for this problem.
Another example is the collaboration of our faculty with the UvA’s Global Health - Research Priority Area, which is a great opportunity for us as lawyers to contribute to the difficult new questions we're faced with in respect of health through developments in technology and globalisation. How do we prevent antibiotic resistance? How do we ensure that antibiotics make it from Europe to African countries? How do we deal with the increase in the use of artificial intelligence in health care?
In addition, because the EU will be playing an increasingly significant role with regard to major health crises, I believe that the balance between the protection of public health and individual rights may begin to fade and that improvements can certainly be made in that regard. I feel that key principles, such as solidarity and proportionality – which, I believe, should in fact be the guiding principles for dealing with transnational health risks – are not as yet clearly enshrined in EU regulations. I’m attempting to develop and provide relevant solutions through my Veni research, funded by the Netherlands organisation for Scientific Research.’
About Anniek de Ruijter
Anniek de Ruijter received a Veni grant in 2017 for her research into better legal safeguards at EU level aimed at addressing major public health crises, such as outbreaks of infectious diseases or bioterrorism attacks. She recently received a grant from Horizon 2020 from a collaboration with the AmsterdamUMC for research into the regulation of pandemic vaccines. INDIGO has public and private organisations in India, the EU and the US cooperating to develop effective and affordable flu vaccines for global vaccinations.