The recent disagreement between the Minister of Defense and the Minister of Health regarding the voluntary or compulsory nature of quarantine for the 14 Spanish passengers of the MV Hondius cruise, who are to be transferred to a hospital in Madrid, has reignited an old debate. This situation echoes the early stages of the COVID-19 pandemic in 2020, when the extent of state power to protect public health against a transmissible disease was questioned.
Constitutional law experts indicate that the legal crux lies in the law's ability to act upon specific, identified individuals, an argument championed by the Minister of Health. Prior to the declaration of the state of alarm in March 2020, selective lockdowns had already been implemented under ordinary health legislation.
A paradigmatic case was that of the H10 Costa Adeje Palace hotel in southern Tenerife. Between February 23 and 24, 2020, the tourist complex was completely isolated after an Italian doctor tested positive for COVID-19. Nearly a thousand guests and some 200 workers remained confined inside the hotel for several days, under the protection of articles 2 and 3 of the 1986 law on urgent public health measures, marking the first major health lockdown in Spain.
“"If we are talking about identified individuals, with names and surnames, carrying an infectious disease, they can indeed be subjected to specific quarantine measures."
The 1986 law on special public health measures empowers health authorities to restrict individual liberties in situations of epidemiological risk. Its second article allows for the adoption of measures for recognition, treatment, hospitalization, or control when there are reasonable indications of danger to collective health. The third article adds that measures can be taken concerning sick individuals and those who have been in contact with them to control transmissible diseases.
Although the Minister of Health trusts in the voluntary acceptance of quarantine by those involved, current legislation includes extraordinary mechanisms to guarantee public health in case of refusal. The same 1986 regulation stipulates that voluntary collaboration from citizens should be preferred, and no mandatory measures that endanger life can be imposed. Furthermore, the chosen options must be those that least harm free movement and other rights, provided they are proportionate to the risk.
