Retirement and nursing homes
that go beyond the Epidemics Act as massive infringements of human dignity,
and continuously questions the legality of the same.
Coercion allowed only
in certain cases
Virological and epidemiological requirements that call for sharply reducing
contact do not justify partially circumventing laws and the rule of law as a
guiding principle of the Federal Constitution even during a pandemic. Mere
recommendations from the health and supervisory authorities and advisory
bodies that gave rise to extensive quarantine measures have no normative
effect. Restrictions of the freedom to move based on this, which are applied
indiscriminately to all residents, were however likely to massively infringe their
guaranteed protected areas pursuant to Sections 5 and 8 of the Convention for
the Protection of Human Rights and Fundamental Freedoms as well as Section
1 of the Federal Constitutional Law on the Protection of Federal Freedom
(Bundesverfassungsgesetz über den Schutz der persönlichen Freiheit). Care
facilities are compelled to immediately report residents who are suspected of
being infected or contagious to the competent sanitary authority pursuant to
the Epidemics Act. Only this authority shall issue directives but also enforce
mandate and isolation notices in the event of imminent danger. In such cases,
the staff shall support the residents in implementing the measures set by
the health authorities. The exercising of coercion by members of the health
professions is not the intention of die Epidemics Act. On the contrary: if a resident
refuses to isolate, the applicable legal situation stipulates accommodation in
a medical facility pursuant to Section 7 (2) of the Epidemics Act or isolation
using coercive measures by the police pursuant to Section 28a of the same
Act. The legality of each of these measures must be verifiable according to due
process. In the majority of the cases observed by the commissions, curfews and
quarantine measures were not based on any official directives.
Threats of isolation and
termination of the home
contract
Bans on leaving the grounds of the home or their rooms imposed on residents
who observed normalised hygiene standards, contact restrictions, social
distancing and wore a mask during the pandemic are always impermissible
because they have no legal basis. Furthermore, threats of 14 days of isolation
or the termination of the home contract in the event of violation of directives
issued by the home management fulfil the criteria for coercion. Without a
positive COVID-19 test result or concrete grounds for suspected contamination,
freedom-restricting measures for the prevention of infection may only be set
pursuant to the provisions of the Nursing and Residential Homes Residence
Act. There are usually high-risk patients among the residents and only staff
who are protected from the risk of infection can guarantee the operation of
the homes. As a consequence, measures that restrict freedom can be applied
as a less severe and last alternative pursuant to the said Act to residents who
are cognitively severely impaired and not fully capable of controlling their
faculties. Such measures shall be reported to the representatives of the residents
and persons of trust.
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