A human rights challenge to Cayman’s COVID-19 rules could set a precedent that opens the floodgates for hundreds of similar cases from people forced to isolate for long periods after contracting the virus.
Dione Anglin, of Prospect, filed a petition to the Grand Court on behalf of her 8-year-old son Tyler, after he was isolated for almost a month following a positive test for the virus.
Lawyers for the Anglin family, in a written submission to the court, cite evidence that suggests the majority of individuals who contract COVD are no longer likely to be contagious after seven days. The petition argues for quashing Cayman’s flawed policy of requiring a PCR exit test to release people from isolation.
If the challenge is successful, Rupert Wheeler, of KSG Attorneys, who is representing the family, acknowledges it could “open the floodgates” for similar cases. And a leading human rights lawyer told the Compass it could set a precedent that leads to hundreds of compensation claims.
Almost 20,000 people have been isolated after contracting COVID-19 in Cayman since the community outbreak began last September. A significant number of those have been kept behind closed doors for two weeks or longer – and in some cases more than a month – because they were unable to get a negative PCR test.
Chris Butler, a QC with Matrix Chambers in London, who has argued several human rights cases in Cayman, told the Compass this week that the case could have implications that go far beyond the family involved.
If successful, he said, the court judgment that follows would set a precedent that others could rely on to bring similar cases.
“If the guidance were held unlawful, it would be likely to follow that all restrictions imposed in reliance on it were unlawful,” he said.
Buttler, who highlighted weaknesses in the PCR exit testing policy as part of a Cayman Compass analysis on human rights and COVID regulations earlier this year, said the pay-outs for unlawful detention would not necessarily be especially high.
But he said a number of small claims could add up to a significant amount of money.
He said it would be up to Cayman’s leaders, if they lose the test case, to establish a compensation scheme rather than be faced with hundreds of similar claims in the Grand Court.
Buttler does not see scope for a further wave of litigation from businesses impacted by loss of earnings from staff who have been out of work as a result of excessive isolation.
He said businesses couldn’t rely on deprivation of liberty – one of the key elements of this case – as a cause of action. Loss of earnings from individual workers that are impacted may be factored into any compensation calculation, however.
The basis of Tyler Anglin’s case, filed against the attorney general and the Health Services Authority, is that requiring a PCR test as a condition of release is a flawed policy, because it detects the presence of the virus for as long as 90 days after infection and is not considered a reliable indication of whether someone is infectious.
This has impacted his right to personal liberty, freedom of movement, right to an education and his right to a private and family life, the court documents state.
While government does have the power to breach individual rights in a pandemic, it is legally required to show its actions are rational and proportionate to the threat.
Government has yet to respond, in any public court filings, to the claim, meaning only one side of the argument has been presented in public at this stage.
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It may be possible to argue now with the benefit of hindsight that the government was too cautious in keeping people in quarantine until they showed a negative PCR test.
But this was not known at the time these decisions were made.
Of great concern if the fact one can catch the Omicron variant even after being triple vaccinated. One can not only be quite sick with it oneself but pass it on to others.
Example: A friend of mine in Hong Kong is triple vaccinated. He works in an office and caught covid. He passed it to his triple vaccinated wife. Both were quite sick but recovering.
Before they realized they had it they visited a family member, a healthy young double vaccinated woman. Who caught it from them and had now been very sick, difficulty swallowing etc.
Much worse they inadvertently gave it to an elderly lady who for medical reasons couldn’t be vaccinated. She hasn’t drunk an liquid for 2 days and can hardly breathe. The hospitals are overwhelmed and bodies are piled up as they can’t get them to the mortuary quick enough.
It is this type of chain of events that our government quite rightly want to avoid. They cannot be blamed if they erred on the side of caution.