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Status Brief

Developmental Milestones/Developments to Date:

Current Assessment/State of the Field:




Enhorn v Sweden (2005) 41 EHRR 30 (56529/00)

  1. “In 1994 it was discovered that the applicant, a homosexual, was infected with the HIV virus and that he had transmitted it to a young man. A medical officer issued instructions to the applicant designed to prevent him from spreading the disease. In February 1995, finding that he had failed to comply with those instructions, the Court ordered that he be kept in compulsory isolation in a hospital for up to three months. Thereafter, orders to prolong his detention were issued every six months until December 2001. Since the applicant absconded several times, his actual deprivation of liberty lasted almost one-and-a-half years.”
  2. “The applicant complained that the compulsory isolation orders and his involuntary placement in hospital had deprived him of his liberty in violation of Art.5(1) of the Convention”
  3. “Held, unanimously that there had been a violation of Art.5(1);”
  4. “The compulsory isolation orders and the applicant’s involuntary placement in hospital constituted a “deprivation of liberty” within the meaning of Art.5(1).”
  5. “Since the purpose of the applicant’s detention was to prevent him from spreading the HIV infection, Art.5(1)(e) was applicable.”
  6. “The expressions “lawful” and “in accordance with a procedure prescribed by law” stated the obligation to conform to the substantive and procedural rules of national law. It was particularly important to comply with the principle of legal certainty. The conditions for deprivation of liberty had to be clearly defined and the law had to be foreseeable in its application. Furthermore, a deprivation of liberty had to be free from arbitrariness, necessary in the circumstances and in accordance with the principle of proportionality.”
  7. “The applicant’s detention had a basis in Swedish law. In the light of the relevant statutory provisions, the national courts considered that he had not voluntarily complied with the measures needed to prevent the virus from spreading; that there was reasonable cause to suspect that, if released, he would fail to comply with the instructions issued by the medical officer; and that such non-compliance would entail a risk of the infection spreading.”
  8. “The essential criteria when assessing the lawfulness of detention “for the prevention of the spreading of infectious diseases” were whether the spreading of the disease would have been dangerous for public health or safety, and whether detention of the person infected was the last resort in order to prevent the spreading of the disease, because less severe measures had been considered and had been found to be insufficient to safeguard the public interest. When these criteria were no longer fulfilled, the basis for the deprivation of liberty ceased to exist.”
  9. “Since the HIV virus was dangerous for public health and safety, the first criterion was fulfilled.”
  10. “As to whether the applicant’s detention had been the last resort in order to prevent the virus spreading, the Government had not provided any examples of less severe measures which might have been considered but which had been found to be insufficient to safeguard the public interest.”
  11. “Despite being at large for most of the period from February 16, 1995 until December 12, 2001, there was no indication that during this time the applicant had transmitted the HIV virus to anybody, or that he had had sexual intercourse without first informing his partner about his infection, or that had not used a condom, or indeed that he had had any sexual relationship at all. Although he had infected the young man with whom he had first had sexual contact in 1990, this had only been discovered in 1994 after he had become aware of his own infection. There was no indication that he had transmitted the virus deliberately or through gross neglect.”
  12. “The applicant’s compulsory isolation had not been a last resort in order to prevent him from spreading the HIV virus. Moreover, by extending the order for his compulsory isolation over almost seven years, with the result that he had been involuntarily detained in hospital for almost one-and-a-half years, the authorities had not struck a fair balance between the need to ensure that the HIV virus did not spread and the applicant’s right to liberty. Accordingly, there had been a violation of Art.5(1)”

Detention, Law, Sweden, Public Health, Europe


S v H.S.E. (2009) IEHC 106 (11th February 2009) Judgement of Edwards J

  1. “The patient (was) alleged to be detained unlawfully at the Mercy University Hospital, an institution operated by the (H.S.E), in purported pursuance of an order made by (the H.S.E.) pursuant to s. 38 of the Health Act, 1947…which provides for the detention and isolation of a person suffering from an infectious disease who is a probable source of infection.”
  2. “the patient’s detention, although initially unlawful, became lawful once she was delivered into the custody of the staff at the Mercy University Hospital who were directly authorised by the s. 38 order to isolate her there in a specialised negatively pressurised room.”
  3. “The key criterion is the need to ensure “effective” isolation. The section expressly provides that the power may only be invoked in cases where the patient cannot be effectively isolated in their own home. It is implicit in the section that the legislature intended that the power should be invoked sparingly and that it should not be resorted to save where absolutely necessary. It is difficult to conceive of any circumstances where it would be necessary to invoke the power save in the case of patient non co-operation with a proposed regime of isolation. Even in a case where a patient’s home is physically, or otherwise, unsuitable to provide effective isolation, it would be unnecessary to invoke the s. 38 power of detention in the case of a co-operative patient. He or she could simply be admitted to, and isolated within, a hospital or other suitable place on a voluntary basis.”
  4. “The power created by section 38 supports an important public interest objective, namely, it assists in safeguarding against the spread of particular infectious diseases amongst the general population by facilitating, where necessary, the compulsory effective isolation of a person who is suffering from such a disease.”
  5. “While it might be desirable that the section should contain more specific safeguards towards the defence and vindication of a detainee’s personal rights, the absence of such safeguards does not, of itself, render the section unconstitutional. A detainee may have recourse at any time to the High Court within the context of Article 40.4.2˚ of the Constitution for the purpose of seeking an inquiry into the lawfulness of his or her detention.”
  6. “The combination of (i) such safeguards as already exist within the section, (ii) the presumption that the section will be operated constitutionally, and (iii) the existence of a readily accessible remedy for the person affected if it is not in fact operated constitutionally, provides an adequate level of protection for the personal rights of detainees. I therefore dismiss the claim of constitutional invalidity.”

Detention, Quarantine, Law, Ireland, Public Health, Europe