Elected public officials who yield to the temptation to reopen the economy, now that efforts made to slow the transmission of the COVID-19 virus appear to have succeeded in preventing this pandemic from overwhelming limited health care resources, risk individual criminal liability unless they order extensive testing of the general population to acquire critical information essential to prevent future harm to all vulnerable people.
Making a political decision at the cost of ignoring science and truth is not a viable defense in a prosecution for criminal negligence causing death. In Canada, everyone is criminally negligent who, in failing to do anything that is his or her duty to do, shows a wanton or reckless disregard for the lives or safety of other persons. Other jurisdictions have similar laws. An individual who knows that he or she is positive for COVID-19, yet fails to voluntarily isolate and is found to be the cause of the transmission of the virus to another person who dies from the virus, is guilty of criminal negligence causing death and may be sentenced to life in prison. But what about the potential criminal liability of an elected public official, such as the leader of a country, state, province or municipality, who ignores the need for extensive testing for COVID-19 and instead reopens businesses, schools and public gatherings in response to gloomy economic forecasts, resulting in a predictable second and more deadly wave of infections? Is this second wave of infection foreseeable because of a choice not to do extensive testing in conjunction with a staged re-opening or is it an inevitable reality that we must all face, even if extensive testing is done?
Consider the following publicly available facts.
At this time, there is no effective treatment nor a vaccine for COVID-19. The best that can be done is extensive testing of the general population, in order to assess when it is safe to discontinue the use of personal protective equipment (PPE) and to eliminate social distancing. South Korea and Iceland are two countries which used extensive mandatory testing to successfully contain the pandemic and to reopen the economy. A second wave can be avoided, but only if universal mandatory testing is done, to avoid this past week’s recent setback in South Korea.
In Seoul, South Korea, more than 2,100 bars and nightclubs were reopened after the country succeeded in achieving zero new cases domestically. This was accomplished through extensive testing of 15,000 people a day which is the third highest rate in the world for per person testing. The health authorities then tracked the contacts of those who tested positive by recorded cashless transactions, GPS mobile phone history, and CCTV cameras. These measures worked because they were aided by a very high degree of public cooperation to wear masks and to socially distance. This was also aided by smartphone apps that disclose the precise locations of infections to avoid new hotspots as they occur.
Despite this initial success, all these bars and nightclubs in South Korea are now indefinitely closed because of one untested asymptomatic male individual. This young man visited as many as five nightclubs in Itaewon over the May 1, 2020 weekend and transmitted the COVID-19 virus he did not know he was carrying to others who were not wearing masks at those nightclubs. It is believed that he infected 43 nightclub patrons who in turn infected another 11 people who were in contact with them. Contact tracing has now identified a further 7,200 people who may have been exposed to the virus.
This scenario will be repeated in every place where universal COVID-19 testing is not done, and when wearing personal protective equipment is carelessly abandoned.
Asymptomatic super-spreaders account for about 50% of all transmissions of the virus. These carriers of the virus are not being tested. Of all people assumed to be asymptomatic, data collection in China and in the USA reveal that about 75% later develop symptoms. The greatest risk of transmission occurs when the viral load is at its peak, which is when an individual has no symptoms or has the onset of only very mild symptoms.
An effective blood test of all asymptomatic people for the presence of antibodies will provide crucial evidence that elected public officials need to make responsible, informed, prudent decisions to identify places where people are at risk of serious bodily harm or death from COVID-19. When Triumph Foods in Missouri recently tested its employees and contract workers who worked at its meat processing plant, 373 people tested positive for the virus, yet none of them were known to have any symptoms.
What is urgently needed instead is to test all people who have no symptoms to find out where the virus is going and who is a carrier of the virus, so that tracing and supported isolation may be done. Only this way can we learn which schools, workplaces, nightclubs and restaurants may safely reopen.
It is a lie to say that everyone in Canada or the United States who wants a COVID-19 test can get one. Tests here are rationed because reliable test kits are in short supply. A hospitalized sick patient who has symptoms of the virus does not need a test. Treatment remains the same. An effective test of an ill human being will only give information of past transmission. But what of future transmissions? The wrong people are being tested!
With few exceptions, workplaces are not voluntarily obtaining Health Verification Certificates that certify that everyone there has been tested by a sensitive, reliable and accurate laboratory test for the presence of COVID-19 antibodies. If your employer does not require you to be tested, ask your employer if your workplace is safe and if your co-workers will not transmit COVID-19 to you. Find out what the answer is. Without testing, no employer can assure your safety.
Elected public officials in Canada and the United States are now committed to relaxing social distancing measures, lifting the hopes of impatient people who are tired of social isolation and restrictions upon individual liberty. By mid-May, large segments of the economy will re-open in places like British Columbia and the American south, without any testing of those people who need to be tested. Advocates urging people to take their chances point out that the cure of lockdown is worse than the damage already done to the economy and to civil liberty. But do not all members of a free and democratic society have an implied constitutional covenant to collectively care for the weakest and most vulnerable among us? Or will we now reject the integration of moral values with the rule of law in favor of the utilitarian rule of the survival of the fittest?
There is no reason why extensive testing cannot co-exist with saving the economy and reopening society. Why not consider the use of “immunity passports” to designate the bearer as someone who has been tested and is medically verified as safe to be in close proximity to other human beings? Civil liberties can be preserved by laws severely restricting demands to produce this kind of passport.
Without extensive universal testing to gather intelligence about the viral enemy that is surrounding us, and without implementing reasonable and prudent measures such as Health Verification Certificates and Immunity Passports, anyone who entrusts their lives to the blind decisions of elected public officials is in grave mortal danger, unwittingly playing a deadly game of Russian roulette.
It is plain and obvious that it is the public duty of an elected public official is to safeguard the health of the complete population from a pandemic. An elected public official is not immune from criminal liability. Can a decision to relax social distancing and to gradually reverse lockdown orders, without carefully considering the data that can be acquired by extensive testing of the general population, be found by a jury to amount to a wanton or reckless disregard for the lives or safety of other persons? The answer is a resounding yes. A prosecutor can make a compelling analogy to a reckless airline pilot who needlessly chooses not to rely on navigation technology when flying blindly in foggy conditions and crashing into a mountainside, killing all on board.
But will those responsible for the laying of criminal charges impartially and courageously do their duty to prosecute criminally negligent public officials? Perhaps. Do elected public officials confidently regard themselves to be above the law? Perhaps. For the rest of us who helplessly watch and wait, our lives depend upon the willingness and humility of elected public officials to listen to and to act upon the wise counsel of experts in bioethics, law and medicine.
By Dr. Charles I. M. Lugosi
Dr. Charles I.M. Lugosi represents clients from his base with Crease Harman LLP in Victoria, British Columbia in the areas of constitutional law, tort law, bioethics, commercial litigation, professional discipline and regulatory law, administrative law, and criminal law. He holds a law degree from the University of Western Ontario and an LLM, a Masters in Bioethics and an SJD from the University of Pennsylvania, and is admitted to the practice of law in both Canada and the US.
Source: Charles I.M. Lugosi, Can Public Officials be Guilty of Criminal Negligence for COVID-19 Testing Failures?, May 14, 2020, https://www.jurist.org/commentary/2020/05/charles-lugosi-public-officials-covid19-criminal-negligence/