When honesty flattens the curve: The legal ramifications of lying about Covid-19

  • Letters
  • Friday, 10 Apr 2020

EVERY day, the Health director-general tells us about patients who refuse to provide honest and accurate information concerning their overseas travel history, their close contact with confirmed Covid-19 cases, or their attendance at large gatherings.

Datuk Dr Noor Hisham Abdullah’s disclosure of patient refusal as the likely cause of infection transmission and the emergence of new infection clusters leaves me wondering: Could more be done to legally compel them to be more forthcoming and provide definitive critical information to our healthcare officials? Can Covid-19 patients be held liable if their action or inactions result in others getting infected?

The Taiwanese authorities invoking powers under their Communicable Disease Act 1944 penalises individuals who fail to provide information about their overseas travel history or contact with confirmed Covid-19 cases when questioned by attending medical personnel with fines of up to T$10,000 (about RM1,500).

China's Hubei provincial government holds a Covid-19 patient liable for intentionally spreading the virus if he spat in public.

It is likewise unlawful in China for anyone suspected to have Covid-19 or who tested positive for Covid-19 to refuse to be quarantined.

Anyone who repeatedly violates rules to quarantine in France will find himself charged with “endangering the lives of others” – an offence carrying a 15,000-euro (RM71,000) fine or up to a year’s imprisonment.

South African authorities enacted regulations under their Disaster Management Act 2002 holding Covid-19 patients criminally liable for “assault, attempted murder or murder” if they intentionally expose others to the deadly virus.

It was widely reported that two men were recently arrested and charged with “attempted murder” pursuant to the above regulation for failing to isolate themselves and by continuing to go to work despite having tested positive for Covid-19.

The US Department of Justice recently greenlighted prosecutions under the country’s tough anti-terrorism laws against anyone who commits “purposeful exposure and infection” of others with Covid-19.

The Attorney General of New Jersey, pursuing this stricter approach, charged a man with making a “terrorist threat” when he coughed at a woman after telling her that he had Covid-19. If convicted, he faces three to five years in prison and a fine of US$15,000 (RM65,000).

Our Health Minister’s declaration of Covid-19 as an infectious disease via gazette declaration P.U.(A) 87 on March 16 effectively classified Covid-19 as a “life threatening microbial infection”.

The legal ramifications of the Minister’s declarations empower the Attorney General (AG) to prosecute recalcitrant individuals under the Prevention and Control of Infectious Diseases Act 1988 (PCIDA) and secondly, if not more importantly, for offences under the Penal Code.

So, if you’re either a Covid-19 patient or you’re someone who had close contact with a confirmed Covid-19 patient, you would be best reminded of your legal duty to disclose, honestly and accurately, all pertinent information concerning your overseas travel history, your close contact with any confirmed Covid-19 patient, and your attendance at any gatherings.

Choosing not to disclose is not legally advisable – unless, of course, you want to test the powers of the AG to see if they would have the gumption to levy charges carrying more than the penalty of a mere RM1,000 fine against you (see Reg. 9 and 11, Prevention and Control of Infectious Diseases (Measures within the Infected Local Areas) (No. 2) Regulations 2020).

If you were thinking that there would be no legal repercussions of you choosing to violate an order to “self-quarantine”, you had best think again.

Any action from you that results in someone else getting infected – be they, family, friends or strangers – carries legal ramifications.

Here is an array of charges you could face should you challenge the might of the law.

> If a Covid-19 patient knowingly or has reasonable grounds to believe that his action would spread the virus to others that tantamount to an offence under Section 12 of the PCIDA. Omitting to give information or giving false information to a public servant (in this case a doctor), renders you open to facing charges under Sections 176 or 177 of the Penal Code. Conviction on any of these charges brings about penalties of fines or imprisonment for terms up to 12 months.

> A confirmed Covid-19 patient choosing to cough in the direction of another within a one-metre range finds himself liable to facing assault charges under Section 351 of the Penal Code. That could render you liable to paying a fine up to RM1,000 or imprisonment for up to three months or both.

> Anyone exposed to Covid-19 who is instructed to self-quarantine must strictly comply with that order. A choice to venture out to a public place is deemed to be a negligent act likely to cause the spread of the virus to others. The prosecution in such cases does not need to definitively prove that anyone was actually infected to secure a conviction, which consequently brings about a maximum six months’ jail term and/ or a fine.

> The actions of not fully and truthfully disclosing vital Covid-19 information to attending doctors that later proves to be the causal link to someone else’s death are likely to be considered a rash or negligent act not amounting to homicide. If that is the case, the offender on conviction for an offence under Section 304A of the Penal Code, which means imprisonment that may extend to two years or a fine or both.

There appears to be a gathering public outcry for more serious actions to be taken against Covid-19 exposed persons or patients who continue to defy orders to either self-quarantine or provide honest and accurate Covid-19 related information when asked. This is especially so if their refusal results in the infection and death of others.

Such blatant defiance bringing about grave and sometimes fatal consequences may trigger the harshest of charges to be brought, that of “murder” or “attempted murder” under the Penal Code – that under current Malaysian law, still carries the death penalty on conviction whilst attempted murder brings about a 20-year term of imprisonment.

Too harsh, some might say, but when calculated against the cost of the many lives lost that could have been saved, may yet be a justifiable course of action.

As Malaysians, we should be thankful that our Attorney General is legally restrained from categorising such flagrant disobedient behaviour as a “terrorist act” by virtue of the strict requirements of proof needed by Section 130C of the Penal Code. That saves the obstinate violator from death by the hangman’s noose.

On a more personal note, a Covid-19 exposed person’s action or inaction carry with it corresponding responsibilities under civil law.

Everyone is everyone else’s “neighbour”. A common law duty of care is imposed on each person with the clear intent that one is to take reasonable care not to injure one’s neighbour.

It goes to reason that a Covid-19 exposed person or patient owes a duty of care not to injure family, friends, attending doctors or healthcare staff, as well as those in close contact with him.

So, when faced with a civil lawsuit for breach of that duty of care, you had best show that you took all reasonable steps not to infect others. Discharge your duty of care by proving you really self-quarantined for whatever periods you were told to. Show evidence you wore masks when you were in public places (like journeying to the hospital).

Being honest, open and accurate in disclosing pertinent Covid-19 information to your attending doctors and healthcare givers greatly helps your cause too.

Always be mindful that breaching this duty of care swings wide open the doors of a civil action rendering the defendant liable to pay hefty financial compensation to victims or their families.

Know for a fact that the choices we make individually in these critical moments make a world of a difference to everyone surrounding you. Your decision to not break out of imposed self-quarantine when ordered and to be absolutely truthful and open with critical Covid-19 information to your healthcare givers helps break the chain of infection, flatten the curve, and ultimately save the country.

Let’s all be reminded of our Prime Minister’s rallying cry that we are in this fight against an invisible enemy. Covid-19 does not discriminate by age, race, colour or creed.

Only by rallying and working together as a community of people, each doing our part to break the chain of infection, can we flatten the curve and see final victory against this dreadful invisible enemy.

Kitson Foong,

Kuala Lumpur

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