Problematic rules    

New COVID health rules are a good start, in need of adjustments

After close to two years of emergency rule, we are pleased that the Davis administration made good on its pledge to table guidelines to manage the country’s pandemic response, and the administration is to be commended for doing so.

Some guidelines, however, are not without their problems as we see it.

The administration has pledged to follow the science in its Health Services Act rules recently tabled, but some rules are not only discriminatory or risky, but appear to promote selling points that have not aged well about vaccine-conferred immunity against SARS-CoV-2 infection and transmission.

Some rules also appear to be designed to tacitly coerce vaccination through barring those who are not fully vaccinated from participating in aspects of society, even as the implied dangers posed by those who are not fully vaccinated, have no continuity of management throughout the tabled rules.

Perspective was among the first in the country to make the considered case for the management of the COVID-19 pandemic by ordinary legislation, rather than by the suspension of normal constitutional order and some constitutional rights via a state of emergency.

We outlined in detail how the Health Services Act could be utilized to manage the pandemic, referencing pandemic management outside of a state of emergency in several countries – some of which that had the best COVID-19 performance records at the time.

We also outlined the implications and dangers of prolonged states of emergency in a democracy, regardless of whether one-man rule was imposed as it was last term.

A benefit of normal constitutional order versus a state of emergency is that regular parliamentary oversight and public representation therewith, exists in the establishment of regulations to govern how the pandemic is to be managed.

Under a state of emergency by contrast, the people through their Parliament, have no regular oversight of or say in emergency orders issued, which in the case of wars which have classically given rise to states of emergency in democracies, was deemed necessary only in the emergent onset of war to respond quickly to needs therein.

The country’s perpetual state of emergency is about to end, having continued as long as the former prime minister desired the power carved out for him therein.

Our first observation of the new COVID health rules, is that while section 29(2)(a)(ix) of the act empowers the minister to make rules declaring any part of The Bahamas to be an infected area infected with infectious disease and connected matters, the new rules do not outline the specific process and parameters for declaring an end to the COVID pandemic in The Bahamas.

Charging Bahamians to come home

Both the unvaccinated and the vaccinated can contract and spread SARS-CoV-2, whose mutations continue to pose challenges in the vaccination effort.

Indeed, the head of the United States Centers for Disease Control and Prevention (CDC) advised in July that the coronavirus is “just a few mutations potentially away” from evading current vaccines.

In country after country, we see that notwithstanding high vaccination rates – some in excess of 80 percent full vaccination – record-breaking third waves and now fourth waves of SARS-CoV-2 infections are occurring, though with lower reported incidences of hospitalizations in some countries.

If the administration wants to effectively manage the spread of SARS-CoV-2 within our borders, knowing who has the virus is important regardless of vaccination status.

Rules that reward the vaccinated for taking the jab as if it has been proven that the vaccinated have almost no chance of contracting or spreading the COVID-19 virus, weaken the country’s ability to quickly respond to outbreaks of new and more resilient variants.

While in opposition, the Progressive Liberal Party (PLP) made much ado about fees for the travel health visa, slamming the Minnis administration for levying a fee on Bahamians to return home, and arguing that the fee was an unfair incumbrance on the constitutional right of Bahamians to return home.

But in the current rules, returning Bahamians and residents who are required to submit to an RT-PCR test – which for the purpose of the rules are those who are not fully vaccinated – must pay a $40 health visa fee.

This fee is the same charged to certain categories of foreign travelers regardless of vaccination status.

This rule, in our view, is not based in science, and is discriminatory against Bahamians and residents who are not fully vaccinated, but who will have already tested negative by RT-PCR for SARS-CoV-2 infection.

Since both the fully vaccinated and unvaccinated traveler must present a negative COVID-19 test prior to entry, the government recognizes that regardless of vaccination status, an incoming traveler can be infected with SARS-CoV-2.

What SARS-CoV-2 protection at the border does this fee provide?

And since vaccination is not a requirement to return home, why are those who are not fully vaccinated being penalized?

When it comes to managing the pandemic at the border, what officials ought to be principally interested in is the SARS-CoV-2 status of the traveler, since COVID vaccination does not prevent infection or transmission.

The rationale for taxing some Bahamians and residents to return home becomes even more tenuous considering the rule that whether fully vaccinated or not, no Bahamian or resident is required to pay for a domestic health visa.

Bahamians and legal residents should not be charged to return home, and we call on the Davis administration to adjust this rule to remove what even the PLP previously condemned as an unjust levy.

The rules also require only incoming travelers and travelers inter-island from New Providence who are not fully vaccinated, to submit to a fifth-day antigen test, which again is a rule that appears designed to reward the vaccinated at the expense of catching as many SARS-CoV-2 infections as testing enables.

Those not fully vaccinated who test antigen-positive must submit to a RT-PCR test and mandatory isolation, while vaccinated travelers who may be COVID-positive will not be identified or subsequently isolated by such testing.

Since all international travelers must present a negative test result for entry, what science is government using to justify requiring only those who are not fully vaccinated to test five days later, even though travelers regardless of vaccination status can have and transmit SARS-CoV-2?

Incidentally, the cost of rapid antigen tests at many medical facilities has dropped below $40, so we question the full use of the $40 fee for travel visas for those returning home.

It is important to recognize that the Health Services Act is for the management of infectious disease, not for the punishment of individuals not known or proven to be infected, for making a medical intervention choice the government does not agree with.

While it is often stated that COVID vaccines lower the risk of infection and transmission, there is no universally accepted quantification of this statement, particularly with variants in play.

With the circulation of more evasive variants, government is taking unnecessary risks by exempting travelers from follow-up testing due to one’s vaccination status.

It seems officials believe rules that suggest that the fully vaccinated are at almost no risk of catching or spreading SARS-CoV-2, will make vaccination more enticing.

COVID vaccination ought to be encouraged through balanced education, and not by subterfuge or incentives that weaken the country’s ability to identify, track and contain infections wherever they might exist.

Immunity considerations

Former Health Minister Dr. Duane Sands recently warned that The Bahamas could still experience a fourth wave of SARS-CoV-2 outbreaks.

Judging by record surges occurring in countries from Singapore, to those in Europe and beyond despite high vaccination rates, his warning does not appear farfetched.

Authorities are currently monitoring the Delta Plus variant which is thought to be more transmissible than the Delta variant, and which a study in the Journal of Autoimmunity says has been found to have five mutations more prevalent than in the Delta strain.

The government should follow through on vaccination education plans to better facilitate informed choice, which at the end of the day can be a choice to either take the vaccine or not to take it.

As we have previously argued, the choice of this medical intervention ought to remain squarely with the individual, and additional treatment and prophylactic options ought to be pursued to enable us to more successfully live with endemic SARS-CoV-2.

The country’s vaccination campaign started in March, and though protection from COVID vaccines is said to wane at around six months, the new rules are written so as to suggest that COVID vaccination confers lifelong immunity.

What, for example, is the level of protection had by Bahamians and residents who became fully vaccinated earlier in the vaccination program, which began eight months ago?

Health officials cannot definitively say, though the rules treat current immunity for all fully vaccinated people as being created equal.

The CDC recently advised that viral loads in the unvaccinated and the fully vaccinated infected with the Delta variant were found to be about the same, and an Israeli study published this month in the Journal of Nature Medicine found that vaccination effect on viral loads declined after two months, and “vanishes after six months or longer after vaccination.”

The rules define “fully vaccinated” as being “that two weeks have elapsed since the person has received the required doses of a vaccine” authorized by agencies designated in the rules.

But those agencies are now authorizing booster shots, so it could well be that  being fully vaccinated, not long from now, will not be interpreted as having just two COVID vaccine shots.

Suppose those who are fully vaccinated now, do not wish to submit to continuous booster shots as would be their right to do? Would they lose their full vaccination status, and the social or employment benefits that status accrues?

With so much said about following the science, it is noteworthy that government has given no room for natural immunity in the new health rules.

A large Israeli study published in August, demonstrated that “natural immunity confers longer lasting and stronger protection against infection, symptomatic disease and hospitalization caused by the Delta variant of SARS-CoV-2, compared to the BNT162b2 (Pfizer) two-dose vaccine-induced immunity.”

The CDC in a study late last month indicated that both natural and vaccine-induced immunity to COVID-19 lasts about six months, noting, “higher, more robust, and more consistent level of immunity to protect people from COVID-19 than infection alone”.

Health and Wellness Minister Dr. Michael Darville should state why those who have recovered from SARS-CoV-2 infection in at least the last several months, are not being regarded as having immunity to the virus as per the new rules.

He should also explain why fully vaccinated people are permitted to only submit to antigen tests in relevant rules, whereas those who are not fully vaccinated in such rules must submit to RT-PCR tests – even though it is known that antigen tests are likely to miss many SARS-CoV-2 infections, particularly if the individual is asymptomatic.

This testing stratification again appears to be a reward to the fully vaccinated, but officials should account for how the same is consistent with best efforts to mitigate the spread of COVID-19, and identify as best as the current testing resources enable, those who are infected with the SARS-CoV-2.

No continuity of  purpose

The rules exempt 24-hour travelers from submitting a negative COVID test before re-entering the country.

It is understood that even if one is newly exposed to SARS-CoV-2 while on a 24-hour trip, a test taken during that trip would not yield a positive result.

We therefore question why the rules do not call for follow-up testing for 24-hour travelers, since the exemption was put in place for presumably the same timing-of-exposure reason.

The rule on the wearing of face masks does not exempt those driving in their vehicles alone or with their household members from wearing a mask, but ought to, as no contact with the general public occurs in such circumstances.

Rules 33 through 36 place restrictions on social gatherings as well as on participants and spectators of recreational and professional sporting events based on one’s vaccination status — even as it requires a negative COVID test for the fully vaccinated in these cases.

It is easy to see why this restriction is problematic.

If a negative COVID test is required for the fully vaccinated in these cases, why not make the rules make sense, by making attendance or participation contingent upon a negative test result regardless of vaccination status?

Such rules suggest that anyone who is not fully vaccinated is to be considered a threat to the public, whether or not he or she is infected with SARS-CoV-2.

Where the lack of continuity continues, is that while one must be fully vaccinated and present a negative COVID test to socially gather or be present or active at sporting events, the same is not required for attendance at religious services, schools and school sporting events, businesses places, ceremonies such as weddings and funerals, and workplace attendance where people spend hours together, often in close proximity.

Is the “bubble concept” expressed in rules 33 through 36 a means of incrementally expanding on emergency orders that posed social limits on those not fully vaccinated, as part of a plan to go even further with such restrictions as time goes on?

Meantime, the rules empower the minister “in exceptional circumstances and in consultation with public health professionals” to exempt a person, business or class of business from restrictions imposed by the rules.

In each case, the minister ought to be required by the rules to make public his exemption as soon as is practicable together with the reasons for it, so that there is transparency in this regard.

A state of emergency does not have to be in place for abuses of power to occur, and the country must not have a repeat of last term where those connected to the competent authority or the governing party got exemptions and allowances the average Bahamian could not access or receive.

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