THE INVOLUNTARY DETENTION AND ISOLATION OF PATIENTS INFECTED WITH EXTREME RESISTANT TUBERCULOSIS (XDR-TB): IMPLICATIONS FOR PUBLIC HEALTH, HUMAN RIGHTS AND INFORMED CONSENT Minister of Health, Western Cape v Goliath 2009 2 SA 248 (C)

Abstract

Public health-care providers (public hospitals) and related health-care services in South Africa have in recent times been under severe strain due to the seemingly uncontrollable increase in dangerous infectious airborne diseases like Extreme Resistant Tuberculosis (hereinafter “XDR-TB”). Ultimately these health-care providers/services have been challenged, not only in the diagnosis and treatment of XDR-TB patients, but specifically to control and curtail the spread thereof by effectively managing sufferers by way of forced isolation and monitoring to ensure that they abide by the rules and strict treatment regime related to XDR-TB. The said challenge hasbecome exacerbated specifically in public health-care facilities where patients suffering from XDR-TB fail to abide by the treatment regime and regularly abscond from follow-up appointments, posing a real threat of infection to the community at large. Consequently public health-care providers and communities have increasingly questioned whether it is possible to invoke some mechanism legally whereby the involuntary isolation of patients with XDR-TB in State-funded health-care facilities could be effected. It goes without saying that such a mechanism (by way of a court order/court authorisation) would have a definite and marked influence on a patient’s right to bodily integrity and freedom (as contemplated in s 12 of the Constitution of the Republic of South Africa, 1996) and will pose significant challenges to any constitutional limitation (as contemplated in s 36) and related legislation (such as the National Health Act 61 of 2003). Ultimately the question under consideration is whether the public’s right to be protected from potentially dangerous infectious diseases constitutionally trumps the right of an individual sufferer to bodily integrity. It is in this regard that the present case under discussion offers far-reaching perspectives.