Table 4.
Guidelines of conditions to orient authorities to take pandemic measures respecting acceptable ethical issues and fundamental human rights.
| Extreme measures and its flexibilizations orders in pandemics must be, concomitantly: |
BASED IN: Solid facts OR Better scientific evidence AND Better protection of all people OR Minor public health risks AND Minor individual health risks OR Prioritization of individual or collective health rights protection |
NOT CAUSE INJURY DIRECTLY TO: Life AND Health AND Dignity OF ANYBODY; OR IS LIKELY TO (PREDICTABLE TO): Cause no harm to anybody AND Better and in first place favor the most vulnerable |
FAIR IF VALID TO: All persons in the same conditions OR One person or group in specific condition |
TAKEN WITH:
The least aggressive effort to achieve the aimed public health benefits. |
RESPECTFUL TO:
Proportionality between the public health measure taken and the pandemic related risk faced. |
| Home quarantine | |||||
| Off-site quarantine** | |||||
| Social distancing | |||||
| Social isolation** | |||||
| Compulsory testing** | |||||
| Compulsory treatment** | |||||
| Compulsory vaccination** | |||||
| Person apprehension* | |||||
| Schools closure | |||||
| Schools reopening | |||||
| Travel restrictions | |||||
| Closure of clinics | |||||
| Closure of stores | |||||
| Closure of services | |||||
| Jail prison order* | |||||
| Home prison order* | |||||
| De-hospitalization | |||||
| Confinement* detention | |||||
| Cities closure | |||||
| Contact tracing | |||||
| Temperature Checks | |||||
| Streets closures | |||||
| Roads closure | |||||
| Lockdown measures | |||||
| Private and health goods/materials apprehensions | |||||
| Compulsory use of masks | |||||
| Commerce, stores, services reopening |
Table Interpretation: (A)
These measures must be decreed by a criminal judge, in the Brazilian law system, after a requirement of a competent public authority, and must be related to a crime investigation on course or related to a conviction settled by a criminal judge (21). (B)
These measures can be taken by public administrative authorities due to the COVID-19 exceptional Federal and States legislations in Brazil, but, for a systematic view of fundamental rights, in case of enforcement measures with the use of public force against individuals physical liberty exercise, it is strongly recommended, for involving people's direct subtraction of liberty, to count with an ongoing criminal investigation and legal order emanated by a criminal judge after the occurrence of a crime related to the pandemic theoretically practiced by the individual (except in the cases such as of vaccination and of treatments with no iminent risks to life, that cannot be forced by physical strength). Isolation measures recommended are obligatory but if physical use of force to make it effective is not needed, the judicial order is also not necessary. But further criminal effects can arise if the individual deliberately do not accomplish with the measure determined by the public administrative authority (isolation after testing positive for COVID-19). These recommendations are founded on the due process of law principles and it's criminal law procedure rights and guarantees (21). (C) The measures of compulsory collecting samples and vaccination do not need a medical doctor prescription to be obligatory in Brazil. On the other hand, the measures of medical examinations, laboratorial tests and treatments, and social isolation must be abiding to medical prescription to be obligatory to the individual in Brazil due to the pandemic legislation in effect (30). (D) The other measures in the Brazilian scenario can be made by public administrative action, due to Executive and Legislative authorities' norms, under their competency to legislate and administrate the health subject of law, also with the use of police force. (E) In case that the competent authorities do not act in their public duty or act against it, the Judiciary power can be provoked to act and deliberate in all these measures, regarding to its legal competencies, by court decisions, also founded in the principle of prohibition of the non-liquet (and the principle of no judgement avoidance) according to which the Judiciary Power in Brazil has the duty to decide in all questions that are demanded in courts (21). (F) If the pandemic exceptional/extreme measure and its flexibilization measure has all five affirmatives to the conditions above, the related measure is fair and accomplish with the fundamental human rights of all, aiming to protect and to promote rights to health in a pandemic scenario. In this case, according to the “Rule utilitarianism,” the measure taken in the case fact is also accordant with an acceptable and ethical rule and that is a moral right act also based on utilitarian grounds.
Source: Data prepared, interpreted from the research findings, and formatted by the authors, from the data related on the references section of this research.