An 8-year-old schoolboy’s human rights were trampled on when he was forced into a month-long COVID-19 lockdown after he contracted the virus, a court was told on Thursday.
Rupert Wheeler said the boy’s quarantine at home in 2022 exceeded the government’s powers to contain the pandemic.
Wheeler highlighted that the most common international standard at the time was five to 10 days of isolation for the dominant Omicron variant of the virus.
He said, “There is simply no reasonable justification for having a policy which requires isolation thereafter, especially when you look at the prevalence of COVID-19 in Cayman at the time and also the level of vaccination at the time.”
Wheeler said the court had to consider whether it was “reasonable and justifiable” to impose further isolation after day 10 when “almost nobody else is doing it”.
He was speaking on the first day of a three-day case against the attorney general and the Ministry of Health, presided over by Justice Jalil Asif.
The family of the boy filed a petition in the Grand Court in 2022 against the attorney general, the health ministry and the Health Services Authority that claimed the then 8-year-old was forced to isolate long after he was likely to be able to infect other people.
The HSA was later removed as a respondent.
The plaintiffs questioned the need for a clear PCR test as a condition of release from quarantine.
Wheeler told Asif on Thursday, “The PCR test will produce positive results long after the person has ceased to be infectious. PCRs might stay positive for more than 80 days.”
He added, “PCR testing does not measure infectious virus, so, by extension, cannot be used to measure infectiousness.
“If a PCR test does not measure infectious virus … and if it is right by extension PCR cannot be used to gauge infectiousness, in our submission it was a failed system to rely on it as a way of assessing risk.”
He told the court, “We submit it doesn’t help in assessing that risk. That’s the reason why the Cayman Islands’ test was unusual.
“We would go further than that — it’s almost unheard of at that stage. There doesn’t seem to be anywhere that used that system at that time.”
Wheeler added that there was “basically international consensus” at the time that after day 10, “the risk of infection was negligible”.
He added the boy’s isolation was “deprivation of liberty” and had “undermined” the boy’s right to an education.
He said, “Even if the court was to conclude this was one of the many ways that COVID could have been controlled, if you were, that isn’t enough.
“You have to be satisfied this was a last resort to protect the public. … It’s our submission that is not a threshold the respondent can meet.”
Wheeler said the quarantine imposed on the child, who was not vaccinated, had interfered with his normal life and the requirement for PCR tests was “interference with someone’s person”.
He added that the plaintiff’s side did not dispute that the government had a legal basis to act to control the spread of the virus and that “in principle it was aiming for something definite — the protection of public health”.
But Wheeler said, “It’s not a situation where it was all so unclear that states were entitled to a wide margin. … Our submission is that it wasn’t the situation at the time.”
He highlighted that the different treatment of travellers to Cayman who arrived at the relevant time amounted to discrimination against the boy.
Wheeler said that an unvaccinated individual who came to the island during the crisis was quarantined and released after 10 days if they had a negative lateral flow test.
He added, “In [the boy’s] situation, we say he was discriminated against and treated in a different way. … He had to remain in isolation past 10 days after a negative lateral flow test, whereas the unvaccinated traveller was released after 10 days and a negative lateral flow test.
“There was no reasonable justification for that difference.”
Wheeler added that counsel for the government side had to show there were reasonable grounds for the treatment of the child.
He told the court, “Fundamentally, when you look at medical evidence, the only conclusion is that they cannot discharge that burden of proof. … We would ask for that relief to be granted.”
The hearing continues.