Norwegian Quarantine Hotels: Infection Control or Penal Measure?

Quarantine hotels and Easter trips

Photo: MedAssure

The rules distinguish between “necessary” and “unnecessary” travel, but the virus does not distinguish between reasons for travelling. The explanation for the rules is not that people who have travelled for particular reasons need to be treated differently from other travellers. Instead, we suggest, the rules are designed to discourage people from making journeys that the government considers unnecessary.

At the press conference where she presented the rules, the Norwegian Minister of Justice, Monica Mæland, admitted that a system for hotel quarantine was not among the measures recommended by the Norwegian Directorate of Health two days earlier. At the press conference, she stated:

“We are approaching Easter, a period when many people are accustomed to going abroad on holiday. This will not be the case this year, and I strongly recommend that everyone should remain in Norway, unless going abroad is strictly necessary. For those who nevertheless choose to travel abroad, we wish to impose stricter controls on how quarantine is implemented. Accordingly, we are now changing the regulations.”

We contend that these new regulations transform travellers into prisoners and hotel staff and private security personnel into jailors.

The conditions at quarantine hotels

Several individuals  have provided detailed  descriptions of the conditions at the quarantine hotels. According to their accounts the hotels seem to have conditions reminiscent of  internment facilities. People find themselves being ordered around – as if they are “in prison”. The doors are locked at midnight. It has been reported that “the guards keep a log of when people enter and exit the hotel”. People are threatened with the police if they are absent for more than two hours. Municipal and hotel employees have roles that resemble those of prison staff or law enforcement officers. At the same time, there are reports that it is physically impossible to comply with social distancing requirements at the hotels. These accounts support the argument that quarantine hotels are not primarily an infection-control measure but are rather a sanction designed to stop people travelling abroad.

At quarantine hotels there is significant loss of control, and stringent restriction on individual self-expression. In this context – and after a year of pandemic regulations and social distancing – 10 days is a long time. There is no system in place for assessing the mental well-being of those quarantined during the quarantine period. Although a large percentage will manage well, there will also be a few with a low(er) tolerance for forced quarantine due to a history of trauma, other disorders, or their current life situation. This presents us with difficult scenarios: What should hotel staff do if they encounter a person with full-blown psychosis for the first time? How are they equipped to tackle suicidal thoughts or disruptive behaviour? Furthermore, what about children quarantined with parents who cope poorly with the situation? We note that a children’s rights perspective is seemingly completely absent from the regulations –as from many other COVID-19 regulations (here and here).

Human rights and legal safeguards

We argue that the government should deal with the quarantine-hotel requirement according to the burdens and restrictions imposed on citizens and others and afford people the rights they are entitled to. Being “confined” in a small room for 22 or 23 hours a day, without physical contact with others (admittedly with full access to digital contact and unlocked doors), may be classified as a deprivation of physical liberty under Article 5 of the European Convention on Human Rights (ECHR). Depriving a person of natural stimulation by means of isolation is a drastic measure.  People who are under isolation are also deprived of the opportunity to regulate their thoughts and feelings in the company of others. Thus, the loss of control and the sensory deprivation may amount to a form of torture.

The quarantine regulation is set forth as a general requirement – but violating it is a criminal offence. The regulation provides no legal basis for bringing people to the hotel by force or for confining them so that they can’t leave the hotel. As the rules are currently practised, they amount to internment.  Deprivation of liberty is permitted only according to very strict criteria. The deprivation of liberty must be predictable, for individuals to know in advance whether they will have to quarantine in a hotel. The ECHR also requires that a person must have the right to appeal the legality of being sent to a quarantine hotel on arrival in Norway. No such possibility exists under the current regulation.

While the border police must consider each case on an individual basis, in the formal sense (i.e., according to administrative law), no individual decisions are generated. The rules about quarantine hotels include an exception for “necessary” travel. What constitutes a necessary journey is a question of highly discretionary nature and requires evaluation of the specific circumstances. It is difficult to determine whether a work trip is “necessary” or whether the matter could have been dealt with digitally without any travel, for example. As the rules are formulated, it is problematic for a traveller to predict whether or not they will have to stay in a quarantine hotel on their return to Norway. Together with the lack of a right to appeal the decision, this situation may engender discrimination, arbitrary decision-making, and interference with personal liberties.

This also entails a deprivation of the guarantees afforded by the Norwegian Public Administration Act.  The quarantine hotel rules empower the police and other authorities to apply discretionary criteria to determine what is “necessary”travel or a “suitable” place to quarantine. Nevertheless, no system has been established to enable people to access the reasons for the decision – or provide them with an opportunity to appeal it.  In other words – while the police make decisions of huge importance to individuals, this is not in any way recognized in the regulations.

Proportionality

We agree that avoiding travel during a pandemic is good infection-control practice. The Norwegian newspaper Dagbladet estimates that 40,000 Norwegians are planning to travel abroad over Easter. Most will travel to Spain or to other Scandinavian countries; some will travel to Poland and others to Pakistan. Poland and Sweden have higher rates of infection than Norway, although Spain does not. Accordingly, there is a certain risk that we may have additional infections in Norway, although the level of risk is a matter for debate. However, a public discussion about alternatives is necessary. We suggest that an alternative approach may be to allow people to quarantine at home – to be followed by frequent phone calls reminding them of their obligation to quarantine.  Staff at the quarantine hotels could be trained to carry out this task.

Norway is a strong constitutional democracy:  the system of hotel quarantine contravenes many of our basic values. We argue that as they are currently drafted, the rules for quarantine hotels do not represent a proportional infection-control measure. Rather, they violate a number of basic principles and legal safeguards. Most seriously, they convert people who have broken no laws into inmates, and hotel employees and security staff into prison wardens.

•  This blog post is a modified version of an op-ed published by the Norwegian daily Aftenposten 
• Translation from Norwegian: Fidotext