11 Proportionality Behind Locked Doors: Nursing Homes, Fundamental Rights, and Visit Restrictions During the Coronavirus Pandemic

This chapter discusses the justification of visit restrictions in nursing homes that were introduced at the beginning of the coronavirus pandemic from a proportionality perspective. An ethical framework for public health emergencies is proposed based on three key assumptions: the importance of distinguishing between the precautionary and proportionality principles, the imperative to base policies on the best available evidence, and the obligation to justify emergency measures within applicable law and ethical standards. This framework is illustrated using the example of Switzerland, where the complexity of implementing visit policies in nursing homes during the pandemic was influenced by preexisting structural challenges and exacerbated by political and health-authority shortcomings, leading to a loss of proportionality in many places. At the level of the individual nursing home, managers often had to keep nursing homes closed for fear of liability. Given the evidence of the detrimental effects of continued visit restrictions and the separation of residents from essential care partners in many countries, this chapter raises the question of the extent to which continued restrictions of fundamental rights of highly vulnerable citizens living in nursing homes should be considered torture or another form of cruel, inhuman, or degrading treatment according to international conventions. This chapter proposes measures to better protect the fundamental rights of residents, strengthen mutual trust, and secure the proportionality of public health emergency measures. Suggestions include allowing permanent and safe access for essential care partners under the same conditions that apply to the staff.