Covid 19 coronavirus: 71 refuse to be tested, Ministry of Health cannot force them - here's why

People let out of managed isolation/quarantine can refuse to be tested - and there is little the Ministry of Health can do about it, a legal expert says.

The Ministry of Health on Friday revealed of the 2159 people in managed isolation from June 9 to 16, 71 let out without being tested had since been contacted but refused to be tested.

The ministry said 1186 people had been contacted and tested negative for Covid-19.

Of those, 800 were tested before leaving managed isolation and the remaining 386 were tested after.

The ministry said 199 people had been referred for a test, but "we do not yet have a result".

They were still searching for 632 people, and 142 people would not be tested because of reasons such as being a child, being part of repositioning crew, being overseas, or the 71 refusing a test.

Director general of health Ashley Bloomfield had previously said during a media stand-up as those people were now outside managed isolation, they had to provide informed consent to be tested.

"We simply can't force a procedure on them," he said.

"If we felt they were presenting a risk to the community then we could. We don't in this case, remembering most of them will have completed their 14 days."

University of Otago law professor Andrew Geddis said once a person was released from isolation - those known not to have the virus, and quarantine - for those who do, they were no longer subject to the Health Act Notice that required testing while in isolation or quarantine.

"So if the ministry now says to them, 'please take a test', they are legally free to say, 'no', just as you or I would be."

It could not be required simply to "save the ministry's blushes", Geddis said.

"If the ministry really wants to test such folk who don't consent, they'll have to do so using individual orders under the Health Act - orders that say 'such and such a person must present themselves for medical examination'.

"Whether such orders are then justified depends on the individual facts, such as: What actual risk is there that each individual person could now have Covid-19?"

People in isolation/quarantine under the Health Act notice from April 9 were required to submit themselves "as soon as possible" for testing.

This included mouth or nose swabs.

At the end of 14 days' isolation/quarantine, they could be released unless they did not meet "low risk indicators".

In order to check they did meet those indicators, they could be tested (including mouth or nose swabs).

"So, from April 9 until June 23, all returnees legally could be tested twice, on arriving into and leaving isolation/quarantine.

"But once you are out of isolation/quarantine, then the legal grounds for that testing ends, and there is no general legal power to require a test from anyone who is out in the community."

The notice also simply said testing "could" occur, not that it had to, Geddis said.

This meant if health officials thought someone displayed "low risk indicators" without testing them, they could legally release them from isolation/quarantine.

However, since June 23 a new order has been in place permitting testing (including mouth or nose swabs) of those in isolation/quarantine "at any time".

It also says a person cannot​ be released after 14 days unless and until they have had a negative Covid-19 test (including mouth or nose swab).

But this still does not mean people would be "physically forced" to take a test.

People who declined to take the test, and in doing so didn't prove they had no "low risk indicators", then could be held in isolation/quarantine for up to 28 days.

Refusing a test as required by the health notice is also an offence punishable by up to six months imprisonment or a fine of up to $4000.