By Yana Litins’ka*
Testing on the Borders
During the COVID-19 pandemic, the issue of preparedness for future healthcare crises, including legislative preparedness – meaning having legislation that can effectively and correctly respond to public health challenges – became topical. In the post-pandemic world, it is crucial to continue identifying the legislative and other hindrances in cases when infectious diseases can be spread in a way that complies with human rights and other requirements.
Infections do not know or acknowledge the state’s borders. However, the construction of states’ obligations is often based on explicit recognition of where these borders are. Unsurprisingly, many states try to limit the possibility of spreading infectious diseases on their borders, especially when the vector of transmission of the disease has been established.
Sweden has not been an exception in attempting to close the country from infections from abroad. The most recent example of such a limitation is the Ordinance of the Swedish Government from 5 January 2023, which required foreigners and non-residents of the EU travelling from China to show negative COVID-19 test results, yet similar limitations have been imposed several times in the past from other destinations.
The requirement to provide the test results to enter the country’s territory is curious from the Swedish constitutional law perspective. It questions whether showing the test results to enter the country can be considered forced bodily interventions in the meaning of Chapter 2 Article 6 of the Instrument of Government (IoG), one of the Swedish four constitutions. In accordance with the IoG, only Parliament (Riksdag) can impose the limitation of the protection against bodily interventions. The order in which the limitation of freedom can be imposed is the same for nationals of Sweden as well as foreigners (see Chapter 2 Article 20 and 25 of the IoG). This blog post will delve into the issue of whether the requirement to provide negative test results at the border can be viewed as forced bodily intervention.
Non-injurious tests as bodily interventions
Preparatory works to the IoG specifically mention that provisions of Chapter 2 Article 6 of the IoG encompass non-injurious interventions, such as blood tests and other similar procedures.[1] The Supreme Court and Parliamentary Ombudsman (Justitieombudsmannen, JO) assumed that saliva tests for DNA investigation,[2] magnetic resonance imaging to establish the age,[3] urine tests,[4] breath tests,[5] opening mouth to indicate that medication was taken,[6] and measuring temperature by contactless thermometer are bodily interventions.[7] The examples from the case practice and preparatory works suggest that examining the body and its secretion falls within the definition of bodily interventions in the meaning of the IoG. Therefore, applying similar logic, tests to establish whether a person has an infectious disease – in the case of COVID-19, usually via a swab or a saliva test – should be viewed as bodily interventions.
Does the requirement to provide tests mean that the interventions are forced?
For Chapter 2 Article 6 of the IoG provides protection against only those bodily interventions that are forced. Should the requirement to provide infectious disease test results be viewed as a forced intervention?
The legal practice has clarified that intervention can be considered as forced whether or not the physical force has been applied. In particular, the JO decisions repeatedly emphasise that when the actions of the representatives of authorities have the effect of causing persons to reasonably perceive that they are obliged to undergo them, they are forced.[8] The JO decisions highlight that in certain situations where a person is dependent on authority, the possibility of providing free consent, in general, can be questioned, and consensual actions can still be considered forced.[9]
In JO 2022/23 p. 523 the Swedish Embassy in Teheran prohibited entering the embassy without measuring the temperature. The JO considered actions to be forced bodily intervention, mainly because persons coming to the embassy can depend on the authority. This reasoning appears similar to the one in cases concerning drug testing to obtain certain medications.[10] In these cases, the general requirement for drug testing was implemented to receive access to medicines that could be incompatible with addictions and lead to severe consequences for life and health. The JO emphasised that routine checks, as opposed to individual-based reviews, do not provide real options for opting out. The JO, therefore, concluded that bodily interventions – the testing – were forced.
Hence, when people invest resources and time to come to Sweden from other countries, the threat of intention being non-realised may result in the perception that there is no other real choice than to take a test. Such tests, especially provided routinely, can be, therefore, regarded as forced ones.
However, the authorities do not necessarily provide testing themselves, and consequently, it can be argued that testing falls outside the scope of the provisions of the IoG. Yet, even here, the JO practice contributed with some answers. In several cases, JO examined actions of social boards demanding persons to give the results of a drug test to receive access to certain rights (social benefits, possibility to communicate with children). Similarly to the situations with testing on the border, the social board would not test the person, but another organisation within or outside the municipality would handle the tests. In these cases, JO considered that the demand of social boards signifies forced bodily intervention in the meaning of the IoG and thus requires safeguards established in Chapter 2 Articles 20-21 IoG.[11]
Based on these sources, it is possible to conclude that authorities’ demand to provide negative infection disease test results to enter the country would fall within the definition of forced bodily intervention under Chapter 2 Article 6 IoG. Testing where a person has no real choice whether to refuse or consent is likely to be considered forced. Due to the context of the situation – a person on a border is often dependent on the authorities – even consensual testing has often been viewed as forced.
What are the alternatives?
The requirement of providing negative testing results is forced bodily interventions; therefore, an act of Parliament must establish such a requirement in accordance with Chapter 2 Article 20 IoG. It is, therefore, necessary to question whether the national laws provide possibilities for such testing. Such possibilities are, in fact, established in the Infection Disease Control Act (IDCA), which lays down so-called health controls (hälsokontroll), in particular, when persons arrive from a country where certain infections are being spread. The Public Health Agency (Folkhälsomyndigheten) is authorised to decide that persons coming to Sweden from a specific geographic area undergo certain investigations to check whether they have an infectious disease.
However, to apply the provision on health controls, several limitations are prescribed by law. Firstly, for the Public Health Agency to decide on health controls, the disease must be classified as socially dangerous (samhällsfarlig sjukdom). Such diseases are established in Appendix IDCA, meaning that the act of Parliament is required to legislate on the issue, but the Government may determine that certain diseases are socially dangerous when the decision cannot be postponed. This means that to use health controls, the Government or Parliament should decide that the disease is dangerous enough to be classified as socially dangerous in the meaning of the IDCA. For instance, COVID-19 is no longer classified as socially dangerous, which makes it impossible to use health controls for this disease. Secondly, Chapter 3 Article 8 paragraph 3 of the IDCA explicitly prohibits health controls to include any forced bodily intervention or medical testing.[12] The measure was designed to allow only the visual observation of symptoms while persons stay on board the aircraft or ship.[13] An infectious disease control officer can observe spots or flashes on the body’s visible parts and changes in skin colour, such as due to fever. However, even simple measuring of the temperature or requirement to show some parts of the body lack legal basis. From these brief observations of the requirements for provisions of the health controls, it is easy to conclude that the provisions are difficult to apply in practice. This may be the reason why the Public Health Agency has never decided on the need to impose the measure.[14]
The abovementioned considerations indicate that Swedish law does not authorise invasive or non-invasive testing on the border nor the requirement to provide test results. It appears that the current legislation and the repeating practice of demanding the test results on the border are not aligned with one another and, therefore, require to rethink the question of legislative preparedness for future public health challenges.
* Yana Litins’ka is LL.D. in Medical Law and senior lecturer in Public Law at the Department of Law, Lund University. This blog post is based on her recently published chapter Litins’ka, Y, Ounce of Prevention for a Pound of Cure? Infection Disease Testing at the Border, In: Festskrift till Elisabeth Rynning: Integritet och rättssäkerhet inom och bortom den medicinska rätten (Dahlin M et al. (eds.), Iustus 2023, Festskrift till Elisabeth Rynning: Integritet och rättssäkerhet inom och bortom den medicinska rätten p. 251-263, available at: https://lucris.lub.lu.se/ws/portalfiles/portal/161401467/10_Litinska_An_ounce_of_prevention_for_the_pound_of_cure_Infection_disese_testing_on_the_border.pdf
[1] SOU 1975:75 p. 199; prop. 1973:90 p. 242.
[2] NJA 2021 p. 368.
[3] NJA 2016 p. 1165.
[4] JO 2009/10 p. 39 and JO 2010/11 p. 509; JO 2020/21 p. 115; JO 2016/17 p. 500; JO 2018/19 p. 681.
[5] JO 2003/04 p. 250.
[6] JO 2017/2018 p. 144.
[7] NJA 2016 p. 1165.
[8] JO 2011/12 p. 471; JO 2019/20 p. 543; JO 2020/2021 p. 115.
[9] JO 2011/12 p. 471; JO 2020/2021 p. 115; JO 2022/23 p. 454.
[10] JO decision 7438-2021 from 14 November 2022; JO 2020/21 p. 115.
[11] JO 2016/17 p. 497 and JO 2019/20 p. 543.
[12] See prop. 2003/04:30 p. 2, 130.
[13] Prop. 2003/04:30 p. 61.
[14] Information is obtained from the Public Health Agency’s letter from 23 October 2023 upon the author’s request to provide public information on the measures, sent on 1 October 2023.
