G. Vetrugno1, F. De-Giorgio2, F. D’Alessandro3, I. Scafetta2, F. Berloco1, D. Buonsenso4, F. Abbate5, G. Scalise5, V.L. Pascali2 and P. Valentini4
1
Direzione Rischio Clinico e Igiene, Policlinico Universitario “A.
Gemelli”, L.go “A. Gemelli”, 8, Roma.
2 Istituto di Sanità Pubblica –
Università Cattolica del S. Cuore, Roma.
3 Centro Studi “Federico Stella” –
Università Cattolica del S. Cuore, Milano.
4 Dipartimento per la tutela della salute della
donna,
della vita nascente, del bambino e dell’adolescente –
Policlinico
Universitario “A. Gemelli”.
5 Avvocato del Foro di Roma.
This
is an Open Access article distributed
under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0),
which permits unrestricted use, distribution, and reproduction in any
medium, provided the original work is properly cited.
|
Abstract Tuberculosis
is a diffusive infectious disease whose typical behaviour
differentiates it from other infectious diseases spread by
human-to-human transmission (flu, chicken pox, cholera, etc.) that
follow a classic epidemic pattern. Indeed, in the presence of a known
source of Koch bacilli that is capable of spreading the bacteria by
air, not all exposed individuals inhale the bacteria, not all those who
inhale them absorb them, not all those who absorb the bacteria are
unable to eliminate them, not all who are able to eliminate them do so
using delayed hypersensitivity, not all those who react with delayed
hypersensitivity suffer lasting tissue damage (among other things,
minor), not all who suffer tissue damage have anatomical sequelae, and
not all those who have anatomical sequelae, however minimal, become
carriers of bacilli in the latent period.
The vast majority (90-95%) of the latter – which are in any case a portion, not the totality of those exposed – remain asymptomatic throughout their lives and never develop active tuberculosis. Based on these biological characteristics and the legal concepts of “epidemic” and “disease,” it becomes highly problematic, if not impossible, to assert both that tuberculosis can cause events of sufficient magnitude to be associated with the crime of “epidemic”, and that the mere diagnosis of a latent tuberculosis infection is sufficient to assume the presence of an illness legally prosecutable in criminal proceedings or a disability prosecutable in civil proceedings. Furthermore, clinically apparent tuberculosis is a temporarily — and in some cases permanently — disabling condition, and in certain work environments, even with the difficulties caused by the lack of available effective diagnostic tools and the insidious behaviour of the disease in the early stages, targeted monitoring to identify other persons who may become ill is appropriate. |
Introduction
In
the national legal systems of modern liberal states, health as an
individual right has been historically fundamentally perceived as an
issue of domestic and international public order.
Hygiene and prevention policies designed to contain the epidemiological
events that resulted in mass deaths in European countries were
implemented and exemplified a more general policy of national control.
With respect to public order, these policies sometimes led to concrete
measures that quite often had elements of repression.
Closing off cities and quarantining them to prevent the spread of
epidemics is the most concrete historical example of such measures,
though even in our current globalised world, risks and emergencies must
be addressed and resolved through measures that often include forms of
isolation, both in a national and European Union context, and
internationally (e.g., mad cow disease, avian flu, swine flu etc.).[1]
In this historical context, during which the goal was mainly to develop
procedures to protect domestic public order, with no importance given
to health as an individual right, it is understandable how states made
extensive use of criminal penalties as tools of repression. Together
with administrative public health measures, local authorities (mayors,
local police, etc.), not only created categories of offenses to shelter
the community from infection by so-called “disease spreaders” but also
developed a concept of disease that differs from the one traditionally
used in medical practice.
Not that the scenario has particularly changed in recent years, since,
on the contrary, with the appearance of the so-called risk society[2] and with the acceptance of the
fallibility of science in the eyes of the law,[3]
the introduction of the precautionary principle and its varying
application in international law[4]
have consolidated the approach under which health problems are brought
back within the sphere of safety or public order, i.e., as a public
health issue viewed as an emergency of international and domestic
public policy.
Moreover, to cite the distinguished scholar Klaus Lüderssen
of
Frankfurt, when problems are difficult and complex, civil law and
administrative law “pass the baton” over to criminal law,[5] reserving only corollary issues,
including compensation and social insurance issues.
Criminal law also has mechanisms that have been oiled over time and
which, precisely because of their extensibility, are believed to be
applicable to control the spread of disease in communities: these are
the crimes of murder, bodily injury and criminal dissemination of an
epidemic.
But however, when evaluating the implementation of these three charges
in actual cases that come before criminal courts, one quickly realises
the substantial ineffectiveness of such measures – designed to punish
those responsible for a death or injury and not to stop the outbreak of
contagion – for addressing the need to protect the health of the
community and the need to identify those responsible beyond a
reasonable doubt.
Within this framework lies the scope of this article, the medico-legal
implications of tuberculosis in criminal, civil and administrative law.
Tuberculosis, a historical infectious disease, while not sharing the
contagion characteristics of other more typically epidemic diseases
such as influenza, cholera and the now-defunct smallpox, continues to
fuel unrest in communities, partly because of the media’s behaviour,
which is primarily focused on sensationalism rather than broadcasting
fact-based news. Today, immigrants in particular are chillingly viewed
as “disease spreaders” and scapegoated, as the Landsknecht mercenaries
before them, who were blamed for the 1630 plague in Milan.[6]
Can Tuberculosis (TB) Cause an Epidemic Prosecutable Under Criminal Law?
The concept of epidemic in medical science differs from the definition
developed in criminal law.
In medicine, an epidemic is an event that evolves suddenly and affects
more people in a particular area than would normally be expected.[7]
In criminal law, on the other hand, for an epidemic to be a crime there
must be proof of an unexpected and mass onset of an infectious human
disease, capable of spreading quickly within a particular time and
space and potentially affecting a significant, indeterminable number of
people.
This particular crime, which is dealt with in article 438 of the
Italian Penal Code, is designated as one of causing criminal harm,
qualified by the existence of a real danger to public health.[8]
In fact, the particular semantics of the word epidemic, when it is
used, infers that in order to confirm that an epidemic exists, the
expositor must immediately verify two predicaments. The first is a
significant succession of occurrences detrimental to the health of
identifiable individuals that can be legally determined as murder or
harmful, and the second is the potentially unstoppable spread of a
disease that, on the basis of similar situations in the past, would
endanger the health of a large but indeterminate number of people in
the community. In these circumstances, “an epidemic is not just any
infectious disease, but is one that given the ease with which its germs
can be propagated, puts the health of a great many people in any single
context at risk”.[9]
In other words, in order to speak of an epidemic in the legal sense,
the situation on the ground must present the following characteristics:
1. The existence of an infectious disease that spreads quickly and in
such a way that anyone that has been infected is instantly capable of
transmitting the germs to others. As a result, this disease is capable
of infecting an indeterminable number of people, in a brief period of
time, in what could be a larger or smaller area such as a town, a city
or even a region.
2. Measures taken by the Public Health authorities (the mayor, health
workers etc.) have not succeeded in quickly containing the spread of
the disease.
The actual number of people infected is irrelevant to the determination
of whether there is an epidemic underway. It does have a bearing on the
process of identifying a person stricken with an infectious disease as
someone who is a looming threat to an indeterminable number of
potential victims, within an extended community, in an uncontrollable
and non-discriminating situation that agencies and Public Health
Authorities cannot manage.
Insomuch as, from the perspective of criminal legislators, the negative
value conveyed by the crime of causing an epidemic transcends that of
single harmful acts such as murder and criminal harm, and provides a
safeguarding mechanism centred entirely on potential victims (those at
risk of secondary infection) rather than existing victims (those with
primary infection). The severity of the crime of causing a risk to
public safety, therefore, means that when ascertaining the existence of
a criminally relevant epidemic already underway,[10]
and knowing it has already infected many people and could infect many
more in the future, especially as the responsible health authorities
are proving incapable of bringing it under control, it is essential to
identify the characteristics of its diffusion and the likelihood of not
being able to control its further spread.
This last point is particularly important, because the immediate
implementation of effective containment measures by Public Health
Authorities and the incapacity of the disease to spread to a large
number of people exclude the possibility, for the prosecutor, to charge
the crime of causing an epidemic.
The logical consequence that can be inferred from this then, is that
any outbreaks of micro-epidemics (i.e., localised situations or those
contained within specific communities) cannot be part of the concept of
the crime of causing an epidemic.
In the same way, incidents of infectious diseases that occur at the
same time, harming patients admitted to the same hospital, but that do
not spread outside the structure to the rest of the population, do not
seem to comply with the definition of the crime in
question.
Similarly, episodes of infectious diseases caused by a single germ
infecting hospital patients at the same time, but not spread outside
the hospital among the general population, do not meet the requirements
for the crime in question.
This explains why, for example, an Italian court considered the
accusations groundless in a case involving the death of sixteen infants
hospitalised in the nursery ward of a paediatric clinic as a result of
infection with Salmonella Wien. The disease had developed within a
closed environment and did not have the magnitude and diffusion
sufficient to constitute a danger to the health of an indefinite number
of people (additionally, the outbreak was contained and fought with no
further danger of exterior transmission).[11]
Further emphasising the substantial gap between the medical-scientific
meaning of epidemic and the meaning used in criminal law is the
consideration that charges of epidemic dissemination can be upheld only
in cases of simultaneous or rapid onset of a disease suspected to be an
epidemic, because the lack of this condition is indicative of poor
transmission of pathogens still capable of inter-human transmission.
One can well understand, therefore, how within this interpretative
framework, the epidemiological profile of tuberculosis is badly suited
to cases of criminal epidemic dissemination.
The natural history of the disease, which has been known for centuries,
reveals that tuberculosis is indeed a diffusive infectious disease that
behaves in a manner significantly different from other infectious
diseases such as influenza, chickenpox and others that have typically
and concretely proven their ability to individually trigger real
epidemiological outbreaks.
The reason for this lies in the fact that not all those who come into
contact with the bacteria responsible for tuberculosis become infected.
The most likely rate of infection is 20-30%,[12]
and
only a fraction of those infected – approximately 5-10% – go on to
develop the disease (after some time) and the ability to infect others.
In practice, all those who are actually infected with the bacteria are
unable to pass it on to others if they have not themselves also
developed the disease in its so-called active form. This makes it
difficult to meet the concentrated space and time conditions required
for charges of criminal epidemic dissemination.
In fact, because of its progression and development characteristics, it
is almost impossible for a disease such as tuberculosis to spread
across a population in such a way as to make a large number of people
ill (and not merely infected) within a given time frame.
Of note is the historical case of the mass death of children in Lübeck
in 1929-1930. The medico-legal experts of the time were able to
demonstrate that it occurred as a result of vaccinations carried out
using a batch of Calmette-Guerin bacilli accidentally contaminated by
live Kochbacilli.[13] Although
this event has the
characteristics of an epidemic from a strictly medical point of view,
it could not be classified as an epidemic in terms of criminal law,
precisely because it lacked the requirement of further spread of the
disease beyond the circle of those directly and immediately infected.
Furthermore, the very rapid development of the disease in that
environment was made possible by the particular mode by which the germ
was introduced to a small, at-risk population.
Moreover, the most recent observations of hospital settings demonstrate
that even in the presence of an infectious source with the capacity to
spread the bacteria in a manner generally favourable to epidemic events
(i.e., by air and over a protracted period of time), exposure of a
significant number of people did not result in subsequent illness.
In December 2003, in a large New York hospital, a registered nurse
working in a maternity ward and nursery, whose status as a carrier of
tuberculosis infection for the past eleven years was known, was
diagnosed as suffering from pulmonary tuberculosis. The nurse had begun
to show the first symptoms of the disease in September 2003, but
continued to work in part because of negative results to the diagnostic
tests that had been performed.
Health authorities identified the nurse’s window of infectivity as
spanning the period between 1 September and 29 November 2003, and
initiated an epidemiological investigation within this window, without
detecting the disease among those exposed.[14]
In August 2006, in a hospital near Kyoto, Japan, another registered
nurse who worked at the hospital maternity ward and nursery, was found
to be suffering from pulmonary tuberculosis. Her most significant
symptoms (starting with productive cough) began in April 2006, and the
nurse had continued to work due to the negative results of the first
clinical and diagnostic evaluation.
Also in this case health authorities identified the infection period of
the nurse as the interval between the onset of symptoms and the date of
definitive diagnosis, i.e. between April and August 2006; after
examining subjects who came in contact with the nurse within the window
of infectivity, no additional diseases were detected.[15]
These examples reveal how, first, it is extremely difficult to
intercept active tuberculosis in a timely manner, because delayed
diagnosis is a constant of the disease and can exceed two months.[16]
Second, it is particularly difficult to identify even the onset of the
active stage, so much so that clinical guidelines provide empirical
criteria that place the beginning of this stage at three months prior
to diagnosis of TB, sometimes stressing the importance of medical
history data and sometimes the significance of X-ray data.[17]
This not only diminishes any attempt to determine the start of the
infectious stage but also prevents identification of an estimated
initial time of a hypothetical epidemic episode.
In the last century, tuberculosis was endemic in Italy and was very
much present in everyday life, not only for doctors. Not surprisingly,
therefore, a distinguished Italian jurist of the time, in his momentous
Treatise on Italian Criminal Law, was able to reasonably rule out that
tuberculosis could ever become an epidemic.[18]
In conclusion, because in legal terms the concept of epidemic requires
not only a phenomenon of substantial magnitude, defined as an event
that affects specific groups of a given population at the same time
(primary sick persons), but also and especially the ability of the
disease to spread quickly to other indefinite groups in the same
territory (secondary sick persons). The history of tuberculosis is
characterised almost constantly by a phase of infection following
exposure that can — sometimes non-sequentially, far from
systematically, and in a very limited number of cases — lead to active
tuberculosis. This is the only stage during which the bacteria can be
transmitted outside the infected person, which prevents any multiple
simultaneous occurrences of the disease within a population from being
deemed criminally prosecutable epidemics.[19]
This does not change the fact that tuberculosis, while not meeting the
requirements to be considered injurious to public safety, can lead in a
certain well-defined category of ill subjects to charges of offences
against a person, i.e., to the patient’s personal health.[19]
These charges can take the form of personal injury claims independent
of the length of the disease’s course, and the charges may vary
depending on whether there is full recovery or recovery with permanent
sequelae, or if the disease results in the death of one or more
affected persons and results in murder charges.
While the crime of murder is easily understood and requires no special
explanation, the concept of personal injury deserves a more detailed
explanation because it allows further clarification of a distinction
existing between clinical and legal language: that of the concept of
disease.
Can Tuberculosis Cause A Prosecutable Disease?
In the medical field, although there is not only one view, in light of
the well-known WHO definition,[20]
it is widely accepted that disease is not equivalent to the absence of
health.
In practice, all known pathologies, classified by organic and
psychiatric criteria, are considered diseases from a clinical point of
view.
In legal parlance, the concept of disease is different. It is any
deterioration of a progressive nature, anatomical or not, of the body
(for example, a trivial excoriation), which can be shown to have
resulted in a significant limitation of a bodily function.
This definition is present in substantially all legal systems and is
applicable both in criminal and in civil proceedings.
However, it is no coincidence that the concept of disease as understood
in criminal law, which in civil proceedings is referred to as
disability (temporary=disease, permanent=sequelae), presupposes a
condition that has resulted in functional limitations to an organ or
the entire organism.[21]
In this context, while it is certainly easy to assign the pathology
“tuberculosis” as clinically expressed with its set of symptoms and
signs to the realm of disease/disability, with a duration substantially
comparable to the observed course and possible outcomes assessed with
the aid of specific tables,[21] an
attempt to systematise the nosological entity known as “latent
tuberculosis infection” is more complex than it appears.
To try to clarify this point it appears necessary to recall some
concepts of purely clinical and anatomical pathology.
The well-known work on pathologic anatomy by Robbins and Cotran
emphasises that it is important to differentiate between infection with
M. Tuberculosis
and the full-blown disease.[22]
Infection is defined as the presence of microorganisms that may or may
not cause clinically significant tissue damage (i.e., the disease).
Numerous publications show the substantial difference between the two
concepts,[23,24]
because tuberculosis infection is substantially the biological
condition that follows contact with the mycobacteria and the settling
of the bacteria in the body, in the absence of any clinical
manifestations of disease.
The term “latent tuberculosis infection” is in turn a further
specification of the disease that embraces a wide spectrum of
biological conditions[25]
reflecting the natural history of the disease.
As noted previously, not all those who come into contact with
tuberculosis bacteria become infected.[9]
In fact, the pathogen may be eliminated altogether[26]
without leaving a trace of its swift passage in the memory of the
immune system.[25]
The pathogen, after a settling period, may be still eliminated, but its
passage essentially creates immunological memory – an acquired immune
response[25] – thanks to an
“immunological scar” that
can be detected using Mantoux and/or IGRA (QTF) tests. Additionally the
bacteria, though not eliminated, may still be adequately countered and
quarantined by the body and contained in a manner that prevents
proliferation and more extensive local and systemic damage. This
condition has been described as “walled in” and is now referred to as
“quiescent infection”.[25]
These stages characterise the anatomo-pathological state usually
referred to as “primary complex.” The state is a spectrum of instances
of tissue damage[27] that includes
exudative
alveolitis (which heals completely), transient Ghon’s complex (which is
completely reabsorbed, also usually healing completely), Ghon’s complex
with scarring (sometimes including disappearance of caseous necrosis
and bacteria), Ghon’s complex leading to fibrosis and calcification
(also called Ranke complex, where bacteria are not detected by the
microscopy[22]) and Ghon’s complex
resulting in a shell of bone tissue containing caseous necrosis
residues and Koch bacilli (“walled in”).[27]
It is therefore appropriate to reiterate that there is not a single
pattern of tuberculosis infection, but a number of possibilities
ranging from the absence of microorganisms to the presence of a small
number of quiescent bacteria, with no signs of disease present, which
scientific literature (in the presence of positive immunological tests,
most importantly the Mantoux test) has termed “latent tuberculosis
infection”.[28]
The fact that a positive immunological test potentially identifies both
quiescent infection and complete elimination of the infecting agent
resulting in activation of immunological memory (the so-called acquired
immune response) justifies the claim that, at present, there is no test
that can be designated as the “gold standard” for determining a
patient’s exact stage of infection. This disarming assertion is joined
by the prevalence of false positives common to any diagnostic method,[29]
as well as the drawbacks specific to tuberculosis tests. One phenomenon
is positivity due to laboratory or testing error, which for the QTF
test can reach values of 30% of positive results that, spontaneously,
i.e., in the absence of potentially confounding factors, convert within
three months to a negative result.30 Additionally, a positive Mantoux
test may be the result of a confounding circumstance, such a previous
BCG vaccination or infection by other mycobacteria[28]
and also the observation, for some categories of subjects tested, of
the interference of known immunological factors.[31]
These include “chimerism” (the presence of maternal T cells, possibly
specific for tuberculosis mycobacterium, in mothers positive to the
Mantoux test, which cross the hemo-placental barrier and can circulate
in a new born infant for several months or even years) and
“trogocytosis” (i.e., the “vampirisation” of foetal/neonatal cells by
maternal immune cells specific for the mycobacterium). Both occurrences
are potentially responsible for a true positive result, but are
descriptive of an immune response temporarily transmitted by the
actually sensitised subject to a subject testing positive, but in the
absence of exposure (e.g.: mother-infant). This explains why there is
no agreement even on the diagnostic criteria for latent tuberculosis
infection in the absence of a gold standard test.
This is also the reason why attempts to reach a consensus on the
definition of latent tuberculosis infection were hampered by the
following conclusions: “tuberculosis” refers to clinically,
bacteriologically, histologically and/or radiologically active disease.
“Latent infection with M.
tuberculosis” is usually defined as presumptive infection
with M. tuberculosis
complex, as evidenced by a “positive” tuberculin skin test reaction
and/or a positive interferon-γ release assay (IGRA), without any sign
of clinically or radiologically manifest disease. However, the
biological nature of latent infection with M. tuberculosis is
controversial. Direct identification of individuals who are latently
infected with live M.
tuberculosis,
without active tuberculosis, is currently not possible. The proportion
of individuals with a persistently positive immune response against M. tuberculosis
by tuberculin skin test or IGRA who are truly latently infected with
live mycobacteria is unknown. The acronym “LTBI” is commonly used
synonymously to describe latent infection with M. tuberculosis
[…]. It is used pragmatically to describe those individuals with a
positive adaptive immune response in the tuberculin skin test or in a
M. tuberculosis-specific IGRA, who are potentially infected with M. tuberculosis”.[32]
If, therefore, the term “latent tuberculosis infection” serves to
identify those subjects with positive immunological test results but
free of clinically active tuberculosis, without determining whether
these same individuals are carriers of the walled-in quiescent bacteria
(that is, without distinguishing with certainty whether they are
infected). Therefore, there can be no doubt that merely detecting this
condition cannot in any way meet the conditions for personal injury in
the legal sense, for lack of conclusive evidence of its biological
assumption: the positive identification of bacteria in the subject
testing positive to an immunological test.
Moreover, as stated, the concept of disease in criminal proceedings is
proven not only by identifying a state of alteration of the anatomy or
of the structure of an organ or tissue but also, and above all, through
the necessary presence of a dysfunction of that organ or tissue.
This is why, if diagnostic tools are developed that are capable of
detecting the actual presence of dormant Mycobacterium tuberculosis
in a subject without active tuberculosis,[33,34]
this might not even be considered sufficient to define this state as a
disease in the legal sense.
It is well known that various parts of the human body (skin,
respiratory system, gastrointestinal tract) host millions of commensal
bacteria, their presence not resulting in any clinically manifest
disease. In some circumstances, their physiological presence, for
reasons of natural saprophytism, is advantageous. Such is true, for
example, in the case of intestinal flora, which improve the absorptive
capacity of the gastrointestinal system. In other situations,
microorganisms are introduced in large numbers in the human host for
therapeutic reasons (for example, with transplantation of microbiota
for the treatment of IBD)[35] or
in prophylactic
procedures (for example, the numerous types of vaccinations by
inoculation with live, albeit attenuated, microorganisms: a prime
example is the Calmette-Guerin bacillus for tuberculosis prophylaxis).
Furthermore, because of the same considerations, the immune reaction
triggered as a result of contact with the bacteria cannot be considered
equivalent to the compromised function necessary for disease in the
legally prosecutable sense or for disability under civil law because
delayed hypersensitivity is the principal expression of the full
functionality of the body's defences against the tuberculosis
mycobacteria. Additionally, this specific immune mechanism – that is,
causing a predisposition to quick onset of delayed hypersensitivity —
is a technique used to prevent the onset of tuberculosis. Vaccination
by injection with attenuated strains of Mycobacterium bovis (a.k.a. the
Bacillus Calmette-Guerin or BCG vaccine) attempts to restrict bacillary
growth in the event of a new attack by Mycobacterium tuberculosis.
Nor, finally, neither can chemoprophylaxis be deemed a criminally
prosecutable disease. This is offered to individuals who, inherently or
due to exposure, are considered to be particularly at risk of
developing the disease. If this were not the case, all chemoprophylaxis
procedures that, for example, are performed on healthy subjects who are
in transit to places of proven endemic presence of malaria and
salmonella for work or pleasure, would be considered criminally
prosecutable diseases.
Tuberculosis and Health Care Work Environments
In a study of point prevalence conducted in a German hospital, the
percentage of healthcare workers who tested positive for tuberculin was
34.8%.[36] In France, prevalence
was calculated at 33%, while in Portugal this figure rose to 45%.[37]
The phenomenon of latent tuberculosis infection is widely represented
in healthcare workers even when they operate in countries with a low
incidence of the disease.
Even if, as mentioned, the probability that immunological test
positivity corresponds to an actual state of quiescent infection is
low, and even if the likelihood that subjects with quiescent infection
actually develop clinically manifest tuberculosis during the course of
their lives is even more remote, the data suggest that monitoring the
trend is desirable. Doing so also serves to protect the health of
workers who, as carriers, are at increased risk of developing
full-blown tuberculosis, particularly if re-exposed to other sources of
infection during the course of their activities.
Furthermore, European Community regulations on employee health contain
other references requiring the health and safety of third parties
present in the workplace who might suffer from the consequences of
actions or omissions of workers.
It therefore seems logical to infer that, by virtue of these
regulations, medical opinions on fitness for specific jobs – which are
a workplace safety measure – can also legitimately contain provisions
for the protection of other co-workers or third parties.
If this is a desirable recommendation, for example, additional personal
protective equipment, we must also ask whether this also applies to
testing for possible carriers of infectious diseases such as HIV, HCV
or TB.
It must be recognised that the protection of health has collective
implications arising from the need to combat forms of epidemic
morbidity and to ensure general public health. This requires a
perspective that takes into account the interest of the community and
can sometimes lead to restriction of individual freedoms. To safeguard
individuals, however, the constitutional laws of modern countries,
quite impervious to discontent, concerns and irrational fears of
ordinary people, usually include a saving clause: cases and forms of
mandatory health treatment must be specified in advance by law, and
secondary provisions can always be added. A legal provision, however,
is not enough. In formulating laws, legislators must take into account
the inviolable boundary of respect for the human person.
It would be difficult even for the strictest litigator to identify
those special cases within the healthcare sector for which the need of
the community is greater than that of the individual, such that a
priori use of indiscriminate mass health checks for all people or
categories of persons is justified; such a measure is obviously
disproportionate to the need for protection of public health. More
often, health assessments are limited both in who can be compelled to
submit to them as a condition of carrying out a particular activity, as
well as in the content of assessments: findings in each case are
functionally related to performance of those specific activities and
reserved for those who are, or intend to be, involved.
Therefore, that in order to protect the health of the community from
the risk tuberculosis transmission among and by healthcare workers,
especially those already identified as carriers of latent tuberculosis
infection and therefore not contagious, but at risk of developing
tuberculosis disease (and thus infectivity), the decision to monitor
frequency and evolution is usually left to the clinical evaluation of
an institutional medical professional responsible for monitoring the
health of workers. It is the responsibility of this professional figure
to determine the type and frequency of tests to be offered to the
employee once potential exposure to occupational risk is assessed.
In respect for individual freedom and health of the individual, it
would be appropriate that, in the absence of known risk factors, these
assessments not be mandatory; refusal to undergo them by employees
might nevertheless affect eligibility for a position.
However, it is clear that particularly in the case of tuberculosis,
ineligibility can be decided only when, during health assessments, even
when specific results are not present because a worker refuses testing,
the examiner has reason to suspect the presence of a pathological
condition, i.e., an actual disease that merits therapeutic and
behavioural measures (including temporary suspension from work) to
protect the health of the worker. These measures are even more
necessary in the presence of bacilliferous, or infectious, states,
capable of spreading via human contact and, as such, are a source of
real danger for the health of other persons (colleagues or people
outside the workplace).
Very different is the case in which the worker is known to have tested
positive to immunological tests. In such cases one can assume that
certain environments may represent an additional biological risk to
his/her health, which justifies restrictive protective measures such as
partial ineligibility of the worker for certain activities involving
such risk.
However, such measures may appear disproportionate, especially when the
employee agrees to submit to periodic assessments and post-exposure
testing, because the monitoring of subjects positive to these tests
could be considered sufficient to ensure the health of workers and
other persons.
This is, moreover, the reason for which international guidelines on the
management of the screening of healthcare workers exposed in low-risk
healthcare facilities suggest that a healthcare worker who undergoes a
Mantoux test “should not repeat screening until a new exposure occurs”.[38]
This establishes that a chest radiograph examination should be
performed for healthcare professionals whose Mantoux test confirms
tuberculosis infection or who present conversion (observed increase of
at least 10 mm of maximum diameter of the skin reaction in a period of
two years), or those who test positive to another immunological test
(QTF) or who are undergoing treatment for latent tuberculosis
infection. The radiograph serves to rule out active-phase tuberculosis;
in such circumstances, a negative test is a sufficient condition to
presume the worker is healthy, and repeat testing is “not needed unless
the patient has symptoms or signs of TB disease or unless ordered by a
physician for a specific diagnostic examination”.[38]
In the event an employee is suffering from tuberculosis, the employee
becomes temporarily unfit to work and, in countries with a social
security system, is eligible for benefits and financial support not
payable for mere latent tuberculosis infection.
Tuberculosis and Obligatory Medical Treatment
The possibility that a patient with pulmonary tuberculosis can spread
of tuberculosis in the population by infected patients is currently
countered using two treatment measures. One is hygienic and behavioural
in nature and consists of isolation in the initial stage. The other
measure is pharmacological and consists of initiating an appropriate
therapy regimen.
These two solutions, especially the former, take on greater importance
in patients with forms of multidrug-resistant tuberculosis.
No problem arises when the two treatments are accepted by the patient.
This changes if patients reject such treatment solutions.
In such cases, in several legal systems, there is the possibility of
forced, mandatory treatment to protect public health and prevent the
spread of pathogens, especially those that are multidrug-resistant.
Obviously this is a measure governed by law, which provides for the
involvement of guarantors other than the doctor who suggest or
prescribe mandatory treatment or isolation. These guarantors might be,
for example, other doctors, the mayor of the city where the patient
resides, or probate judges.
This The use of guarantors serves to balance the interests of the
public with those of the patient (which mandatory treatment can subject
to pressure).
One must consider that, to balance the needs of the individual with
those of public health, mandatory treatment, even if codified, cannot
compromise the dignity of the patient. The duration and extent of
treatment must be proportionate to the actual danger present.
Therefore, mandatory isolation, lasting longer than 15 days, of a
patient fully adherent to pharmacotherapy and a carrier of
non-multidrug-resistant TB,[28]
would constitute a
blatant violation of the dignity of the patient and could result in
criminal charges and possibly compensation of damages in civil
proceedings.
On the other hand, failure by the physician to recognise the conditions
requiring measures to cure and contain the disease could lead to
professional liability in the event of deterioration of the patient’s
health or spread of the disease to individuals entering into contact
with the patient.
Conclusions
Tuberculosis is a disease that has accompanied the evolution of man
from the earliest social structures, similar to other infectious
diseases famous for their historical lethality (smallpox, influenza,
malaria, plague, measles and cholera).[39]
Tuberculosis, as well as other diseases mentioned above, were decisive
factors in the course of human history.
When the transcontinental railroad was built in Canada circa 1880, the
Indians of Saskatchewan met both the whites and the Koch bacillus, and
began to die of tuberculosis at the frightening rate of 9% per year.[39]
Not only, along with its sister diseases, tuberculosis can even
determine the outcome of military conflicts, with the winners not
decided by strategic and military preparation, but rather according to
who had historically been more immunised.
It is inevitable that similar diseases may leave their mark not only on
the collective memory in the form of ancestral fears but also in the
regulatory systems that govern the current societies descended from the
initial aggregations of our predecessors at the beginning of their
emergence and diffusion.
Based on these experiences and, of course, are affected by the
plasticity of the human organism and its ability to adapt over time and
coexist with these illnesses through the ages.
In this respect, tuberculosis can be seen as a paradigm: because
knowledge of its natural history has been established over centuries of
observation, it has been possible to arrive at a coherent formulation
of the crime of dissemination of an epidemic. The need to protect
public safety limits the crime to contagious infectious diseases that,
unlike tuberculosis, are able to spread rapidly and simultaneously in
large sections of a target population, and therefore constitute a
serious threat of equally rapid transmission to subjects initially
spared.
Tuberculosis can be viewed as a paradigm in a different respect. In
countries with a low incidence of the disease and in certain working
environments, such as within disease centres, the prevalence of latent
tuberculosis infection – as mentioned, an ill-defined corollary of
tuberculosis – has now reached significant percentages, to the point of
real social concern that, uncontrolled, health care workers may one day
become carriers of the pathogen exposing the most vulnerable strata of
the remaining population: patients admitted to these centres for other
reasons.
It is obvious that monitoring of the phenomenon is necessary, but it is
equally clear that such monitoring systems inevitably involve a
decrease in the freedom and individual aspirations of workers,
particularly in the case of controls with overly restrictive measures
that force workers to stop their chosen profession in the name of
protecting public health, even if well-intentioned.
Again, tuberculosis has been problematic in the historical development
of our societies and does so in typical provocative style, posing
uncomfortable questions to various legislators and their interpreters:
is it legitimate to sacrifice the freedom of the professional on the
altar of the precautionary principle, supposedly in place to protect
public health?
On closer inspection it is the agonising dilemma that runs through the
history of liberal states: to reconcile the requirements for protecting
the freedom and interests of both the individual and the group.
The balance of interests is an unresolved dilemma that this ancient
infectious disease (together with similar diseases) forces us to
address even today, particularly because of its impact in the workplace
and in social life.
References
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