Artigo 'Legal aspects of public health'

Acta Tropica 139 (2014) 84–87

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Review

Legal aspects of public health: Difficulties in controlling vector-borne and zoonotic diseases in Brazil Marcílio S. Mendes a , Josué de Moraes a,b,∗ a b

Legislative Department, R. João Gonc¸alves, 604, 07010-000 Guarulhos, SP, Brazil Research Center for Neglected Diseases, Faculty of Science of Guarulhos (FACIG/UNIESP), Av. Guarulhos, 1844, 07025-000 Guarulhos, SP, Brazil

a r t i c l e

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Article history: Received 17 April 2014 Received in revised form 9 July 2014 Accepted 12 July 2014 Available online 19 July 2014 Keywords: Legal aspect Public health Vector-borne diseases Zoonotic diseases Dengue fever Inviolability of the home

a b s t r a c t In recent years, vector-borne and zoonotic diseases have become a major challenge for public health.

Dengue fever and leptospirosis are the most important communicable diseases in Brazil based on their prevalence and the healthy life years lost from disability. The primary strategy for preventing human exposure to these diseases is effective insect and rodent control in and around the home. However, health authorities have difficulties in controlling vector-borne and zoonotic diseases because residents often refuse access to their homes. This study discusses aspects related to the activities performed by Brazilian health authorities to combat vector-borne and zoonotic diseases, particularly difficulties in relation to the legal aspect, which often impede the quick and effective actions of these professionals.

How might it be possible to reconcile the need to preserve public health and the rule on the inviolability of the home, especially in the case of abandoned properties or illegal residents and the refusal of residents to allow the health authority access? Do residents have the right to hinder the performance of health workers even in the face of a significant and visible focus of disease transmission? This paper argues that a comprehensive legal plan aimed at the control of invasive vector-borne and zoonotic diseases including synanthropic animals of public health importance should be considered. In addition, this paper aims to bridge the gap between lawyers and public health professionals and to facilitate communication between them. © 2014 Published by Elsevier B.V.

Contents 1.

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Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The inviolability of the home according to the Brazilian legal system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

The administrative police and power of health authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

How can we solve this apparent conflict of norms? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. Introduction The control of insects and rodents is extremely important for the maintenance of health and healthful conditions in the population.

Mosquitoes, rodents, bedbugs, cockroaches, flies, lice and fleas are

∗ Corresponding author at: Research Center for Neglected Diseases, Faculty of Science of Guarulhos (FACIG/UNIESP), 7 Av. Guarulhos, 1844, 07025-000 Guarulhos, SP, Brazil. Tel.: +55 1120869770.

E-mail addresses: marcilio@camaraguarulhos.sp.gov.br (M.S. Mendes), josuem@usp.br (J. de Moraes). http://dx.doi.org/10.1016/j.actatropica.2014.07.008 0001-706X/© 2014 Published by Elsevier B.V.

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all capable of transmitting disease (Taylor et al., 2001; Brown, 2004; Cutler et al., 2010). The primary strategy for preventing human exposure to vector-borne and zoonotic diseases is effective insect and rodent control in and around the home. This is achieved by eliminating any sources of food, water and shelter and by sealing even the smallest entries into homes (Kilpatrick and Randolph, 2012; CDC, 2014). However, although simple, these methods of control are not always undertaken by citizens. As a result, the population suffers from diseases, many of which spread rapidly, causing high morbidity and mortality (Cutler et al., 2010; Racloz et al., 2012). Based on their prevalence and the healthy life years

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lost from disability, dengue fever and leptospirosis are the most important communicable diseases in Brazil, and their control and elimination are now also recognised as a priority for achieving the United Nations Millennium Development Goals (Franco-Paredes et al., 2007; Hotez et al., 2008).

Several control system methods exist for a variety of vectorborne and zoonotic diseases. However, successful early warning strategies are limited because of the complex and dynamic nature of the diseases, environmental factors, vectors and hosts involved as well as the health system infrastructure needed to integrate all these factors (WHO, 2003; Braks et al., 2011; Kilpatrick and Randolph, 2012). In Brazil, in addition to educating the public, health authorities inspect people’s homes to eliminate the places where the mosquito lays its eggs, such as artificial containers that hold water in and around the home. Outside, clean water containers such as pet and animal watering containers, flower planter dishes or covered water storage barrels are also inspected by health authorities. However, people rarely allow health workers access to their homes. As a result, an infectious agent can spread quickly to the surrounding community. (Rodriguez-Barraquer et al., 2011; Quintero et al., 2014; Villabona-Arenas et al., 2014). The purpose of this report is thus to describe the issues relevant to public health, especially considerations relevant to public health and to the performance of the Brazilian health authorities. In addition, this report presents some of the difficulties faced by health authorities in the fight against neglected diseases, particularly those transmitted by vectors and rodents, with attention on the regulatory obstacles that may hinder activities in relation to guidance and supervision.

On the one hand, the constitutional rule on the inviolability of the home prevents access by others except with the consent of the resident or in certain exceptional situations. On the other hand, there is the fundamental right to health, which is linked to the performance of health authorities entrusted with the prevention of disease and the adoption of measures to fight it. Thus, the question is whether health authorities should be allowed to enter public or private inhabited places without judicial authorisation or the consent of the resident in order to implement measures to prevent and combat infectious diseases such as vector-borne and zoonotic diseases. In this context, we have an apparent conflict between legal interests of enormous significance: the inviolability of the home and the need to preserve public health. Here, we describe the legal difficulties and challenges inherent in the control of vector-borne and zoonotic diseases and certain legal strategies that could prove to be effective.

2. The inviolability of the home according to the Brazilian legal system The Brazilian Federal Constitution of 5 October 1988 (CFRB, 1988), in the section that addresses rights and guarantees, states that the domicile is inviolable and that no-one may enter without the consent of the resident, except “in the event of flagrante delicto or disaster, or to give help, or, during the day, by court order” (Brazilian Constitution, 1988, Title 2, Chapter 1, Article 5, XI). Thus, it is understood that there are exceptions to the inviolability of the home, as entry can be made in certain cases without the consent of the citizen.

In Latin America, several countries such as Mexico have constitutional rules endorsing the inviolability of the home as a fundamental right (PCUMS, 1917). The first paragraph of Article 16 of the Political Constitution of the United Mexican States establishes the subjective right to privacy for the governed in their homes. However, the eighth paragraph allows a public authority to enter the house of a citizen under certain conditions or requirements and with a definite purpose in order to allow him/her to

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perform his/her activities without causing unnecessary discomfort. There is also a general provision concerning the inviolability of the home in Amendment 4 to the US Constitution, proposed on 25 September 1789, which prohibits unreasonable searches and seizures (CUSA, 1789). Furthermore, the inviolability of the home is protected in the Universal Declaration of Human Rights, which states that “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks” (Article 12) (UDHR, 1948).

It is important to note that the term “house” or “home” in relation to constitutional protection covers all bounded and separate spaces including professional spaces, collective housing, permanent residences or those of a habitual character. Moreover, the right to inviolability does not depend on the condition of ownership; it includes temporary possession, for example that of a guest at a hotel. The consent of the right-holder is required, regardless of whether the entry occurs during the day or at night (Sarlet et al., 2012).

Unauthorised entry into someone else’s house or other property is a crime according to Article 150 of the Brazilian Penal Code. This states that it is a crime “to enter or remain in someone else’s house or premises illegally or through cunning, or against the express or implied will of those eligible”. The punishment is detention of one to three months, or a fine. However, this is not an absolute rule: Article 23 of the Penal Code provides exclusions. The exclusion that is of interest in our work is that entitled “strict compliance with legal obligations”. According to this exclusion, there is no crime if the action of the public authority is in strict compliance with a legal obligation; clearly, public officials who are fulfilling a duty cannot be held criminally responsible for their actions, without prejudice in terms of liability for any excess.

To mitigate the rigour of Brazilian criminal law and considering that no right is absolute, Bill No. 367/2011, authored by Senator Humberto Costa, is pending in the Senate. This bill proposes an amendment to Article 150 of the Brazilian Penal Code, authorising agents to promote health in the fulfilment of their official duty, undertaking sanitation actions or sanitary control in the case of a property that is uninhabited. In relation to the intention of the amendment, it is important to note that health workers often fail to perform sanitation or sanitary control activities in uninhabited houses or buildings for fear of committing a crime. Another difficulty arises when the residents of homes that may be infected by an infectious agent and/or its vector or where there are synanthropic animals of importance to public health refuse access to public health agents, perhaps for fear of being fined or penalised for any reason, preventing or hindering the agents from performing their guidance and supervision functions. In such cases, the right to health should undeniably override the right to the inviolability of the home, even if it is inhabited.

An interesting point concerns the conduct of a resident who prevents or hinders public supervision. At present, this constitutes a sanitary infraction and the health authority may issue a Notice of Violation to residents who may later be penalised, following due process. Residents may refuse to provide personal data to public officials. However, creating obstacles to their identification could constitute an infraction of Article 68 of the Law of Criminal Misdemeanours; refusing to provide data or information concerning identity, status, profession, domicile and authority of residence when justifiably requested or required can result in a penalty. Thus, health workers may request assistance by submitting notice of the residents’ reluctance to provide information to the administrative police for appropriate action; in this case, the penalty incurred is a fine. Of course, in the case of the refusal of residents to allow access, the health authority can apply for judicial authorisation for

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its agents to pursue their legitimate activities. However, the delay in the performance of health workers may lead to the spread of disease and even the death of people.

the part of health agents, which can cause immeasurable harm to the community, such as morbidity and mortality.

4. How can we solve this apparent conflict of norms?

3. The administrative police and power of health authorities The application of police power in administrative terms is not synonymous with criminal enforcement procedures; rather, this authority establishes the means by which communities may enforce civil protection to hamper or prevent the spread of disease. The power of the administrative police is exercised over all activities and assets that affect or may affect the community. Thus, the activity of the administrative police should not be confused with the duties of the judicial police. The administrative police are deployed, as a rule, in a preventive manner, within the organs of the government, whereas the judicial police are linked to public security organs, e.g., the civilian police of Member States, who tend to act in a threatening manner. Nevertheless, the power of the administrative police must be exercised with due reference to fundamental rights and guarantees. After all, we have progressed from individual absolutism to social relativism (Meirelles, 2014).

It is worth noting that the power of the administrative police is characterised by the following attributes, usually referred to as administrative discretion, self-enforceability and obligation. The attribute of discretion means that the administration, through its agents, acts with a certain amount of freedom, analysing the opportunities for the performance of its activities or administrative actions. Concerning self-enforceability, the administration alone fulfils its decisions alone, without the prior permission of the judiciary. With respect to its obligations, the administration can impose its decisions, even employing public security forces to enforce compliance (Meirelles, 2014).

Brazilian Federal Law No. 6.259/1.975, which rules on the organisation of activities in the Epidemiological Surveillance of the National Immunisation Programme, establishes rules for the compulsory notification of diseases and other measures. Article 11 directs health authorities to ensure that they have the capacity to undertake epidemiological research to ensure accurate diagnosis and establish the spread of disease in the population at risk as well as to command and run investigations, surveys and epidemiological studies of individuals and certain groups, always as deemed necessary to protect public health. Moreover, Article 12 states that health authorities can adopt promptly those measures indicated for the control of disease with regard to individuals, populations and the environment.

The penalties for violations of health legislation are articulated in Article 10 of the Federal Law No. 6.437/1.977, which provides for penalties of warning, intervention, interdiction, cancellation of license (if trade) and/or penalty for one who obstructs or impedes the action of the competent health supervisory authorities in the exercise of their functions. Similarly, Article 110 of the Sanitary Code of the State of São Paulo describes that a health violation is considered for the purposes of this code and its technical standards to comprise “disobedience or failure in any way to comply with the provisions of statutory rules and regulations intended for the promotion, preservation and restoration of health”.

We must not forget that in our democratic rule of law, constitutional principles and the adversarial legal defence system apply, i.e. those apprehended are entitled to an administrative process in which they may counter the charges made by state agents and specify the evidence they intend to present in their defence, and they may also avail themselves of the appropriate resources to challenge an unfavourable decision. Unfortunately, all such motions translate into the impossibility of quick and efficient actions on

Owing to a lack of modifications to habitats and of effective mosquito and rodent control programmes, the importance of the activities undertaken by health workers cannot be disputed. These actions aim to prevent and combat vector-borne and zoonotic diseases, directly reflecting the very existence of the people. As already mentioned, the constitutional provision of the inviolability of the home, although of undeniable importance, ends up being a hindrance to the work of these professionals.

However, there are indications that governors and legislators have aimed to promote changes in the legislation and that such changes have the scope to authorise agents to fulfil their official duties, for example through sanitation actions or sanitary control in the case of uninhabited properties. Nevertheless, such amendments are at best a partial solution because residents who are present when health workers arrive can prevent their entry to residential and business properties. Thus, to avoid conflict and make progress in their tasks, health workers tend to move on to the next property to be surveyed. This situation is insupportable, as health workers do not have criminal intentions with regard to a residence, but are professionals acting for the well-being and health of the whole population. The ensuing assessment gives rise to an administrative process with steps and deadlines to be observed that prevent or hinder monitoring actions, despite these being a duty of the health authority, which is inconsistent with the need for the rapid intervention and elimination of the transmission of disease.

5. Conclusion Vector-borne and zoonotic diseases represent a significant risk to public health because of their inherent dependence on the global environment in and around the home (Vora, 2008). We conclude that the creation of an enabling legal framework is required, assigning powers to health workers to enter homes and other premises, even against the wishes of residents, if there is evidence of outbreaks of disease transmission. We consider that the individual right to the inviolability of the home should be relaxed in the face of everyone’s right to health. It is worth remembering that there is a lack of awareness in the population in relation to the measures necessary to prevent and combat vector-borne and zoonotic diseases as well as the control of synanthropic animals of importance to public health. Ultimately, the roadmap for the control and elimination of the more widespread vector-borne and zoonotic diseases will require an inter-sectoral approach that bridges public health, social services and environmental and legal interventions in the face of the lack of awareness among citizens concerning their role in mosquito and rodent control.

Acknowledgments J. de Moraes is grateful to the Faculdade de Ciências de Guarulhos (FACIG/UNIESP, Grant Number 01/2014) for financial support.

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