The health authorities do not have ‘the power or the legitimacy to deprive any person of his liberty’, the Lisbon Court of Appeal held that the confinement imposed by the regional health authority of the Azores on the four German tourists was an ”illegal detention”.
In the decision, the Court of Appeal states that:
“Any person or entity issuing an order that leads to the deprivation of physical liberty, on an out-patient basis, of another person (whatever nomenclature this order may be called: confinement, isolation, quarantine, prophylactic protection, etc), which does not fit into the legal provisions, namely the provisions of article 27 of the CRP (Portuguese Constitution), and without having been granted such decision-making power by law – coming from the RA (parliament) , within the strict scope of the declaration of a state of emergency or siege, is making an illegal arrest, because it is ordered by an incompetent entity and motivated by something that the law does not allow. ”
It also explains that this issue has already been discussed over time with regard to other public health phenomena, for example with regard to HIV and tuberculosis infection. “And, as far as we know, no one has ever been deprived of his liberty, out of suspicion or certainty of suffering from such diseases, precisely because the law does not allow it”.
Faced with the argument that the confinement was requested “because they are carriers of the SARS-CoV-2 virus and because they are under active surveillance by the health authorities for high risk exposure”, the judgment questions:
“Since when is it up to a court to make clinical diagnoses, on its own initiative and on the basis of possible test results? Or the ARS (Regional Health Administration)? Since when is the diagnosis of a disease made by decree or by law?”
The Court emphasises that “a diagnosis is a medical act, the sole responsibility of a doctor” and that “there is no indication or proof that such a diagnosis was actually made by a qualified professional in accordance with the law and that he acted in accordance with good medical practice”.
“In fact, what emerges from the facts given as settled is that none of the applicants has even been seen by a doctor, which is frankly inexplicable in view of the alleged seriousness of the infection”.
The decision also notes that the RT-PCR tests on covid-19 have “a reliability which, in terms of scientific evidence (and in this field, the judge will have to draw on the knowledge of experts in the field), is more than questionable”.
Tourists would have carried out a test in their country 72 hours earlier to determine if they were carriers of the virus. Copies of the negative test were handed over to the Regional Health Authority at Ponta Delgada airport. On August 7th, two citizens carried out a second test and the rest did it three days later. One of the women tested positive, and all received a prophylactic isolation order.
The decision says that in the light of current scientific evidence, such a test alone proves incapable of establishing beyond reasonable doubt that such positivity in fact corresponds to a person’s infection with the SARS-CoV-2 virus, for various reasons:
- This reliability depends on the number of cycles that comprise the test;
- This reliability depends on the amount of viral load present.
Citing the study Correlation between 3790 qPCR positive samples and positive cell cultures including 1941 SARS-CoV-2 isolates, published at the end of September this year by Oxford Academic, and “carried out by a group bringing together some of Europe’s and the world’s leading experts in the field”, the document says:
“At a cycle threshold (ct) of 25, about 70% of the samples remained positive in the cell culture (i.e. they were infected): in a ct of 30, 20% of the samples remained positive; in a ct of 35, 3% of the samples remained positive; and in a ct above 35, no sample remained positive (infectious) in the cell culture (see diagram). This means that if a person is positive PCR test at a cycle threshold of 35 or higher (as is the case in most US and European laboratories), the chances of a person being infected are less than 3%. The probability of a person receiving a false positive is 97% or higher”.
According to the Court, the possible reliability of the PCR tests carried out depends from the outset on the threshold of the amplification cycles they involve, so that, up to a limit of 25 cycles, the reliability of the test will be around 70%; if 30 cycles are carried out, the degree of reliability falls to 20%; if 35 cycles are reached, the degree of reliability is 3%.
“In the present case, the number of amplification cycles with which PCR tests are performed in Portugal, including the Azores and Madeira, is ignored, since no recommendation or limit could be found in that respect”.
He also mentions this study to indicate that one of the potential reasons for presenting positive results may be the prolonged spillage of viral RNA, which is known to extend for weeks after recovery to those previously exposed to SARSCoV-2.
“There is no scientific evidence to suggest that low levels of viral RNA per RT-PCR are equivalent to infection unless the presence of infectious viral particles has been confirmed by laboratory culture methods. Thus, since there are so many scientific doubts, expressed by experts in the field, which are the ones that matter here, as to the reliability of such tests, ignoring the parameters of their performance and there being no diagnosis made by a doctor, in the sense of the existence of infection and risk, it would never be possible for this court to determine that C…was a carrier of the SARS-CoV-2 virus, nor that A., B… and D… had high risk exposure”.
