Scottish Human Rights Law Group

Infectious diseases – article 5(1)(e)

A health board, in order to prevent the spread of disease, made an application under Section 54 of the Public Health (Scotland) Act 1897, for the compulsory transfer and detention of a patient who had been diagnosed with tuberculosis (TB) and had been admitted to the infectious diseases unit at the local hospital but had absconded from there on several occasions and had been abusive towards staff.

Evidence was adduced to the effect that it had not proved possible to detain the patient in the local hospital and that a patient who had started treatment needed to continue with it, or the TB could become resistant to medication and be passed on to others in its drug-resistant form. 

In granting the application, the sheriff held that the proposed detention complied with Art. 5(1)(e).   Detention was lawful under reference to the 1897 Act whose procedures were said to be able to be applied and interpreted consistently with the general requirements of Article 5 in authorising the  detention of an individual in hospital only with reference to a court. It was thought unnecessary for there to be an explicit power to limit the period of detention, provided that the period did not exceed the time needed for the patient to become clear of infection since the 1897 Act (and Article 5) envisaged that patients would be detained only for as long as they remained in an infected condition.