The order of the Ministry of Health of Aragon to send the lists of positives or suspects to the security forces could violate data protection

Among the measures adopted by health administrations to stop the escalation of coronavirus infections there is one that has recently raised some controversy

Last week the Ministry of Health of Aragon authorized the communication of lists of patients or suspected of covid to the State security forces and bodies and local police to verify if they are complying with isolations or quarantines

The problem as the order implicitly acknowledges is the lack of means to control rebellious citizens The reports of some cases of positives who were on the street bypassing the confinement has shown that the telephone monitoring system is not enough

In order to involve the police in this search and verify that those affected do not leave home the rule supports that the regional health administration share this information with them

However data protection experts do not agree on the legality of the measure While some lawyers state that it is sufficiently substantiated others miss a norm with the force of law that in general sets the assumptions and conditions for the authorities to transfer this sensitive information

On the other hand there are also doubts about what the role of the State security forces and bodies should be in controlling offenders

Can they stop anyone who skips the quarantine as happened with a surfer from San Sebastián who a few days ago ignored the Ertzaintzas requirements to get out of the water Should your work be limited to communicating noncompliance to Health or the judge These are all experts warn questions that do not have a simple answer

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Is it a legal measure

The Aragonese health order justifies this decision by the need to guarantee the effectiveness of the isolations or quarantines imposed

According to it the communication of these lists to other authorities even without the consent of those affected is allowed by both health legislation and data protection regulations

This is the opinion of Ricard Martínez director of the Chair of Privacy and Digital Transformation at the University of Valencia According to the lawyer the decision of the Aragonese government is foreseen for exceptional situations such as the current one

Both the General Law of Public Health and its Aragonese counterpart states guarantee that the health authorities adopt the measures they consider necessary specifically the request for help from other authorities to protect public health in case of urgent need or imminent and extraordinary risk

In addition he adds Organic Law 31986 on special measures in public health authorizes them to make the decisions they deem appropriate for the control of the sick in the event of a possible transmission It is therefore for Martínez a legal and legitimate measure

However these same legal bases are insufficient for Iñaki Pariente former director of the Basque Agency for Data Protection and now a partner at Dayntic Legal The lawyer warns about the danger posed by legislation that does not clearly specify what are the measures that health authorities can adopt even in cases as exceptional as the coronavirus pandemic

Any action he argues would be covered because it is only required that they be adequate and proportional a highly interpretable concept

For the jurist not everything goes and demands a legal reform that limits these extraordinary decisions It has moved it objects from the request for a judicial authorization to the taking of restrictive and invasive measures through an order from the health minister

The very imposition of confinement is an administrative decision that creates some legal doubts Until now he insists in order to isolate or lead a contagious patient to a hospital as in some cases of tuberculosis an authorization was requested from the judge

An argument rejected by Martínez who clarifies that the imposition by force of confinement does require as recognized by the Aragonese rule judicial intervention

He agrees with Pariente on the need for legal coverage but understands that the existing one is sufficient to request the collaboration of the State security forces and bodies for verification and control purposes never coercive

By Vil Joe

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