What Govt can do if testing refused
People let out of managed isolation/ quarantine can refuse to be tested — and there is little the Ministry of Health can do, a legal expert says.
The Ministry of Health yesterday revealed of the 2159 people in managed isolation from June 9 to 16, 71 let out without a test had since been contacted but refused testing.
Director general of health Ashley Bloomfield had previously said those people now outside managed isolation had to give informed consent to be tested.
“We simply can’t force a procedure on them,” he said. “If we felt they were presenting a risk to the community then we could.”
The ministry said 1186 people in managed isolation from June 9 to 16 had been contacted and tested negative for Covid-19. Of those, 800 were tested before leaving managed isolation and the rest later.
The ministry said 199 people had been referred for a test, but “we do not yet have a result”. It was still searching for 632 people, and 142 would not be tested because of reasons such as being a child, being part of repositioning crew, being overseas, or the 71 refusing a test.
University of Otago law professor Andrew Geddis said once a person was let out of isolation (for those thought not to have the virus) and quarantine (for those who did), they were no longer subject to the Health Act Notice that required testing.
“So if the ministry now says to them, ‘please take a test’, they are legally free to say, ‘no’ . . .
“If the ministry really wants to test such folk who don’t consent, they’ll have to do so using individual orders under the Health Act . . . that say ‘such and such a person must present themselves for medical examination’. Whether such orders are then justified depends on the individual facts, such as: What actual risk is there that each individual person could now have Covid-19?”
People in isolation/quarantine under the Health Act notice from April 9 had to submit to testing “as soon as possible”. This included mouth or nose swabs. At the end of 14 days’ isolation/quarantine, they could be released unless they failed to meet “low risk indicators”. In order to check, they could be tested (including mouth or nose swabs).
“So, from April 9 until June 23, all returnees legally could be tested twice, on arriving into and leaving isolation/quarantine. But once you are out of isolation/quarantine, then the legal grounds for that testing ends, and there is no general legal power to require a test from anyone who is out in the community.”
The notice also simply said testing “could” occur, not that it had to, Geddis said. This meant if health officials thought someone had “low risk indicators” without testing them, they could legally release them from isolation or quarantine.
However, since June 23 a new order permits testing (including mouth or nose swabs) of those in isolation and quarantine “at any time”. A person cannot be released after 14 days without a negative test.
People who declined, and in doing so didn’t prove they had no “low risk indicators”, then could be held in isolation/quarantine for up to 28 days. Refusing a test as required by the health notice is also punishable by up to six months’ jail or a fine of up to $4000.