South Africa converted into the first African country to work out a large nationwide coronavirus testing plan to track and monitor the number of the COVID-19 illness.
The administration has declared the deployment of 67 mobile screening and measurement vans and 10,000 field mechanics in a bid to expand trial tenfold to 30,000 a day by the end of April.
It may seem a certain result that every South African displaying signs of COVID-19 would submit themselves to testing and practice; yet, it continues possible that a person may, for whatever purposes, refuse coronavirus testing and practice.
Regulation 7(2) of the amended lockdown guidance issued in terms of the Disaster Management Act 57 of 2002 (Government Notice R480 of 29 April 2020) gives that a person refusing to go to an privacy site or quarantine facility may be enforced by a court order issued by a magistrate, in whose power such a person is, to quarantine themselves, to go to an isolation/quarantine department, or submit to a pathological analysis.
Is this a legitimate intrusion of an individual’s right to physical and psychological integrity? It seems that it may be in these times of crisis where the actions of one can place very common at risk.
The Human Security
Section 12 of the Constitution (liberty and security of the person) provides the following in subsection (2):
Everyone has the right to physical and psychological integrity, which includes the right.
The legal right to bodily and psychological honesty unquestionably arises when there is a medical intervention against a person’s will. In the absence of clear laws such as the lockdown regulations mentioned above, the question arises as to whether there is a legitimate basis for therapeutic intervention upon a person’s opinion that gives constitutional muster.
The Law Break by Coronavirus Testing
Our law recognizes a person’s right to bodily liberty, and any intervention without consent will break that right to make choices about one’s body and, on its face, unlawful except there is a legally recognized ground of appeal.
Consent is the most important ground of support for medical intervention. Still, others that are professionally recognized are a must, statutory authority, court order and negotiorum gestio (spontaneous agency by a person who acts on behalf of and for the good of another without their authorization or consent, and which eliminates fault on the part of the person who runs).
In terms of the common law, legally valid consent to a medical intervention must fulfill specific requirements. These requirements have frequently been expressed in case of code, most authoritatively in the often-quoted judgment of Chief Justice Innes in Waring and Gillow Ltd v Sherborne. Consent must:
- not violate the good morals of society
- be given in the proper form where such form as prescribed by law
- be given freely and voluntarily
- be clear and unambiguous
- be comprehensive
The mere fact that an intervention has been performed without informed consent does not necessarily mean that it was unlawful or wrongful. If another ground of justification is present, the reply will be lawful.
Necessity explains the execution of persons suffering from a serious infectious illness and the vaccination of healthy persons in order to stop the spread or outbreak of a deadly epidemic such as COVID-19. The consent of the person to whom the treatment is given is irrelevant in such cases, and it may be administered even against their will.
Thus the lockdown controls which allow for a person to be examined and treated for COVID-19 without their permission are maintained by the common law and the National Health Care Act and do not violate the legal right to bodily honor.