#EbolaPolicyAdvocacySeries – Turning Ebola into an Opportunity for Public Health Law Transformation
On this week’s #EbolaPolicyAdvocacySeries, Dr. Cheluchi Onyemelukwe-Onuobia calls for the urgent need to transform Nigeria’s public health law. WHO’s certification need not make Nigeria and Nigerians complacent, to develop a “no longer our problem” attitude we are pretty skilled in, eager to move on the other next sensation. We are not out of the wood work yet, hence as a nation we cannot afford to risk another infectious disease – perhaps deadlier than Ebola – meet us unprepared.
One of the major lessons to come out of the Ebola crisis is the need to be proactive. The need to be one or several steps ahead of impending crises, however unlikely we had imagined them. The need to provide solutions to problems that were hardly anticipated. When Nigeria’s index Ebola case, Patrick Sawyer, landed in Lagos this past July, very few medical experts could have foreseen how far and quickly the Ebola virus would travel. Yet it did. And we wondered why Nigeria had made so little preparation, knowing what our neighbours were grappling with. Which brings us to our second lesson: the need to develop a strategy and to act quickly when events that should have been anticipated occurs. However badly Nigeria did with the first lesson, she clearly compensated with the second, and as such today WHO has certified us free of Ebola. One cannot help but be grateful that Federal and Lagos State governments in concert with development partners worked quickly to contain this disease.
There is a third lesson, one which must not be forgotten: how do the two lessons above coalesce into a sustainable and concrete policy on infectious diseases, with effective implementation processes and procedures? Effective public health law is an essential component of this last lesson. Not long ago, I was on a plane within Canada when a passenger collapsed after take off. When we landed, we were withheld at the tarmac, to allow time for the airport authorities, who had been notified, to decide if we should be allowed into the city or if anyone needed to be isolated. The clear steps, understood and expected by the crew and the authorities, were strong indications that there were explicit policies in place and robust implementation processes. Several of these were developed after Canada faced the SARS virus, which arrived in a similar manner as the Ebola virus did in Nigeria.
As a country, we have learnt this last lesson about developing a stable policy framework for anticipating crises, sometimes through simply bumbling our way into it. One of the areas in which we have benefited from acting in hindsight is the area of research ethics. After the Pfizer meningitis trials in the mid-nineties, we eventually developed a framework for research ethics about a decade later. That framework, though still inchoate, came into handy use even during this Ebola crisis. For instance, the Minister was quick to call upon the National Health Research Ethics Committee to inquire into the ethical aspects of using the new medicines on patients in Nigeria. The Committee, now a part of the Federal Ministry of Health, still awaits the firm legal status. The long-awaited National Health Act, which in the past week had been sent the President for signing, would provide it that. With the President busy with election campaign, perhaps we would be in for another cycle of legislative hearing on a bill that has already been ten years in the making.
Many have wondered what would happen to the diplomat who escaped surveillance to cause an engulf Port Harcourt in the Ebola scare. Or to other persons who choose to escape surveillance or engage in other conducts that had the potential to cause harm to the health of the public. Can any legal action be taken against him? And based on what legal foundation? Are there health officers required by law to man our ports and borders? What are the powers of the government to designate any particular place or community as a quarantine centre? From where are those powers derived? Is there information asymmetry: can we trust the government? Can the government legally withhold information from us about the extent of the crisis to prevent pandemonium? What policies do we need to establish now that we know it is possible, maybe even probable, that people would choose to flout well-meaning instructions and seek to escape surveillance or even quarantine, that health workers may act in unethical ways, and that a failure to report an imminent danger is not farfetched? A comprehensive piece of legislation would have provided an immediate response to some of the aforementioned inquiries.
Legislation such as the Quarantine Act provides legitimacy for the public health measure of isolation by quarantine. As such, the legitimacy of the quarantines that have taken place so far in regard to the containment of the Ebola disease have come from legislation like the Quarantine Act and the Public Health Laws of various states. Unfortunately, like the Minister of Health observed, the contents of the Quarantine Act are outmoded, outdated, and in sore need of updating and revamping in light of current conditions. For instance, the Act, first enacted in 1926 and amended last in the 1950s, does not provide any specifics in respect of travel by air, containing only subsidiary legislation with regard to ship travel: The Quarantine Ships Regulations. Needless to say, travel by sea has become one of myriad means of transport, indeed one might argue a means of transportation that many who travel widely and often will never employ. Within the regulations, definitions clearly require updating in view of current circumstances. The terms “quarantinable diseases,” “infectious diseases,” or “infected ship,” “suspected ship” or “surveillance” are given restricted definitions that would not catch the Ebola Virus Disease if it were brought into the country by a ship. “Ouarantinable disease,” for instance, is defined as “cholera, plague, relapsing fever, smallpox, typhus or yellow fever” a definition that would not catch Ebola. Periods of surveillance for these diseases, as required by the regulations, do not exceed fourteen days, less than the twenty-one required for Ebola. The Act further provides that contravention of any regulations made thereunder would attract the penalty of a payment of fine of N200. Yes, two hundred Naira.
What could be the possible contents of a new Quarantine Act? A wider, more contemporary and anticipatory definition of infectious disease is essential. This definition must take into account the fact that not all infectious diseases require isolation or quarantine and the different modes and possible routes of transmission and manage these. It is also important to define such terms as “isolation” and “quarantine,” both public health tools, yet are not synonymous. The public health powers of compulsory examination, treatment, emergency detention and quarantine must be clearly delineated. In addition, the powers of courts to make orders regarding these must be articulated.
The new Act must reflect the change of focus from marine travel to other modes of travel, including air and land travel. There should be authority requiring report to airport authorities, permitting inquiry by appropriate health authorities at the airport, and possibly the isolation of an air passenger where necessary if he or she develops or manifests an illness. It must require cooperation of the authorities in charge of those other means of travel and other allied matters.
There must be balance between individual rights to certain freedoms like the freedom of movement and right to privacy, and the public’s right to be protected from harm and the government’s obligation to provide same protection. Thus, due process and human rights protections for persons who are compulsorily detained must be provided for. In terms of due process, it should be stated that a court order is required to enforce a quarantine, except in cases of immediate threat.
Importantly, it must be provided that isolated persons are entitled to all the care that is necessary to secure a cure where possible so that isolation centres do not become merely holding centres for people awaiting death. This imposes an obligation on governments to provide the necessary resources. Criteria for release should be stated where possible, including the freedom to petition the court for release when illness is no longer present. In this context, the power of the government to use any armed forces to ensure compliance should also be clearly defined. Further, matters relating to compensation and job security should be addressed. The balance must also come with provisions for education for aviation officers, including pilots, ship masters et cetera.
The provisions should be framed in concrete terms, striking a proper balance between public health, government emergency powers, current scientific knowledge, and individual freedoms. A new Quarantine Act would grant clear, legitimate, authority to the emergency powers of the government. Beyond that, it would provide a proactive strategy for dealing with future pandemics and other public health emergencies. It would help limit arbitrary action and floundering in the face of crises, and promote sustainability, clarity, accountability, and a proactive approach to unforeseen challenges.
These needs have not suddenly dismissed or become negligible because Nigeria has been certified free of Ebola. Indeed, now more than ever, is the time for Nigeria to imbibe its first lesson – prevention costs far less lives than excellent rapid emergency response. Certainly we require more than appropriate law and its enforcement to fight Ebola – which, for all we know, may still be lurking around the corner – or any other public health emergency. We could not emphasis more on the need for continued, sustained public education, improvement in sanitary conditions and healthcare infrastructure. Training of emergency officials, development of research capacity, and professional ethics are essential. Above all, comprehensive legislation is foundational and has an important place in the arsenal to fight public health challenges.
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