5 May 2009
The seven day quarantine "lockdown" of the Metropark hotel in Hong Kong has highlighted the extent of the Government's powers to deal with a potential epidemic. These powers are contained in the Prevention and Control of Disease Ordinance (Cap. 599) and its subsidiary legislation (Cap. 599 A) (the "Ordinance"). Once "Swine Influenza" was added to the Ordinance as a "specified disease" early last week, the way was opened for government authorities to access a wide array of special measures designed to monitor and prevent the spread of disease.
The Ordinance came into effect on the 14 July 2008. It replaced the Quarantine and Prevention of Disease Ordinance (Cap. 141) which was used during the SARS epidemic in 2003 and in relation to Avian Flu in 2006. The intention was to bring Hong Kong into line with the 2005 International Health Regulation drawn up by the World Health Organisation.
The quarantine of the Metropark demonstrates how important it is that those involved in the management of hotels, offices, shopping malls and residential developments are aware of the Ordinance and how it might be used by the Government.
The Prevention and Control of Disease Ordinance and its subsidiary legislation provide for:
- the establishment of disease surveillance systems for rapid detection and containment of disease;
- measures to prevent cross-boundary spread of disease; and
- a holistic plan of measures to prevent the spread of the disease locally.
The Ordinance also allows the creation of new regulations during a public health emergency and the provision of compensation.
Initial stages - What can the authorities do prior to an outbreak?
- Vehicles/Vessels/Aircraft - Anyone operating a vehicle which comes into or out of Hong Kong is required to notify a health officer of cases or sources of a specified infectious disease or contamination on board the vehicle, vessel or craft.
- Travellers - Health officers may require travellers to provide any information deemed necessary for the purpose of preventing the occurrence or spread of an infectious disease. Authorities may also take the body temperature of travellers as they enter Hong Kong.
- Entry Points - Operators of Hong Kong's entry points and any vehicle, vessel and craft are required to maintain them in a sanitary condition and give reasonable assistance to health officers. Health officers have right of entry without a warrant to check that such places are maintained in a sanitary condition and to examine any journal, log book or records kept.
Outbreak suspected - What can the authorities do when they suspect an outbreak at a specific place?
- Health officers with reason to suspect that someone with an infectious disease is present in a place or that a place has some connection with the infectious disease have a right to enter, including the right to break in, without a warrant. The only exception is for "residential premises". In such cases authorities will be required to obtain a warrant. Residential premises would include serviced apartments and residences but not hotel rooms.
- With the approval in writing of the Director of Health, health officers may seize any article they suspect is, or contains, an infectious agent. There appears no specific requirement for the property to be returned once deemed safe, although compensation will be payable.
Outbreak confirmed/strongly suspected - What are the powers of the authorities to isolate and quarantine?
- Anybody whom a health officer believes is infected, or is likely to have been in contact with someone who has been infected, can be held under quarantine until it is clear that he or she is not, or is no longer, infectious.
- A health officer may also prohibit anybody he or she believes has been exposed to the risk of infection from leaving Hong Kong. The notice will be given in writing and can be waived by written order of a health officer.
- The Director of Health may order any "place" to be held under isolation or impose any limitation considered necessary to prevent the spread of disease. In making an isolation order, the Director of Health seems to have considerable flexibility, restrained only to what he or she considers "sufficient to prevent the spread of the disease concerned".
What powers do the authorities have to enforce the Ordinance?
- There are several possible offences that can be committed under the Ordinance, most are related to the obstruction of the exercise of the authorities' powers or an escape from isolation or quarantine. The different offences carry a range of penalties. The maximum fine is HK$10,000 and imprisonment for six months.
- If a police officer or health officer reasonably suspects someone has committed or is committing an offence under the Ordinance, he or she has the power to stop, detain and arrest them.
Are owners/managers required to lodge reports of sick people in their establishment?
- Subsidiary legislation attached to the legislation in place during SARS (Cap 141 and its subsidiary legislation) required occupiers and keepers of premises (including keepers of hotels and boarding houses) to lodge health reports. At present this is not required under the new legislation. Owners, managers and keepers of such premises should nevertheless ensure that they are aware of any new legislation or regulation passed that may impose such a requirement. This could happen at any time according to powers granted under the current Ordinance.
- Medical practitioners are under a statutory obligation to notify the Director of Health of any suspected or confirmed case of H1N1.
- Where someone knows that they have an infectious disease or are likely to have been exposed to the risk of the disease, they commit an offence if they expose other's to the risk of infection. This includes being present in a public place. The penalty is a maximum fine of HK$5,000 and up to six month's imprisonment. Someone who has care of such a person must reasonably endeavour to stop them exposing other people to the risk of infection.
Am I entitled to compensation if I am placed under quarantine or have my property seized, damaged or destroyed?
- The Director of Health may order compensation that is just and equitable in the circumstances for any property that is seized, surrendered, damaged or destroyed.
- No compensation is included in the Ordinance for being put into quarantine or placed in isolation. Nor is compensation provided for in respect of damage done to a business by the application of the Ordinance. There are no guidelines on how those placed under quarantine or isolated are to be treated.
- No health officer or any other public officer can be held personally liable for any act done in good faith in the exercise of powers (or purported powers) under the Ordinance. The Government is not, however, excluded from liability.
It is hoped that the isolation of the Metropark will represent the peak of the authorities' response to Swine Flu. More importantly, it is hoped that the risk of an epidemic abates. Let us stay calm, manage personal hygiene with diligence and prepare well.
Check here for related links (Swine Influenza - Employers' Obligations and Liability): https://www.mayerbrown.com/publications/article.asp?id=6555&nid=10353
For more information, please contact:
Andrew MacGeoch (
Timothy Ker (
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