The following is a guest post by Graciela Rodriguez-Ferrand, a senior foreign law specialist at the Global Legal Research Directorate of the Law Library of Congress.
When a plane landed in Madrid, Spain, on January 31, 2020, with passengers who had been evacuated from China because of the coronavirus, Spanish health authorities quarantined the evacuees at a military hospital, where they were to spend two weeks in preventive isolation. The Ministry of Health of the Community of Madrid Sanidad reported that the isolated passengers would have freedom of movement within the quarantine area and all necessary amenities.
1. What legal authority allows Spain to quarantine individuals?
During a public health crisis, Spanish legislation allows for the implementation of actions that are deemed appropriate by public health authorities, even against the will of those affected. Law 3/1986 on Special Measures in Public Health provides that the government may impose isolation on certain people to avoid risks to public health in the event of a situation of real danger to the population. Under this law, health authorities are responsible for the detection, treatment, hospitalization, and control of anyone who shows signs of danger to the health of the population, and they may thus quarantine those infected or suspected of being infected, as well as anyone who has been in contact with the sick, even if they are asymptomatic.
2. What about individuals’ fundamental rights under Spanish law?
In principle, Spanish law provides that all health-related treatments require the patient’s free and voluntary consent. Otherwise, the measure would violate fundamental rights—such as freedom, security, and freedom of movement—that are protected under articles 17 and 19 of the Spanish Constitution.
However, this general rule has some exceptions, among which is the risk to public health. Therefore, hospitalization or isolation of an individual could be forced as long as it is proven that there is an imminent and extraordinary risk. Article 8(6), paragraph 2 of Law 29/1998 Regulating the Administrative Litigation Courts requires authorities to prove the necessity and proportionality of the measure and to indicate its estimated duration, which the law allows to last for as long as the crisis or the concrete danger persists.
3. What protections exist to ensure quarantines are proportional?
The power given to the authorities to protect public health has some restrictions. Any measure that would violate fundamental rights may be executed only under judicial authorization or ratification issued by a judge of the Administrative Litigation Courts, who is responsible for assessing the proportionality and necessity of the action. In case of extreme urgency, the measure may be undertaken first and ratified later by the courts. For example, on February 26, 2020, in compliance with Law 29/1998, the competent court ratified the order of the Ministry of Health of the Government of the Canary Islands of February 24, 2020, that had imposed a quarantine on a Tenerife hotel where the presence of a person suspected of having the coronavirus had been confirmed.
4. How do international law principles affect quarantines?
In the case of the current coronavirus outbreak, the fast spread of the virus has led the World Health Organization (WHO) to declare a Public Health Emergency of International Concern (PHEIC). This status is regulated in the 2005 International Health Regulations (RSI) to prevent the international spread of diseases, protect against their propagation, control them, and respond in a proportionate way.
When registering an incident related to an international emergency outbreak—in this case, a coronavirus case—each country is required to identify, investigate, confirm, quickly assess, and to notify all member countries of the situation. As a member of the WHO, Spain is bound to apply the WHO protocol in cases of international health emergencies.