Portuguese appeals court finds PCR tests unreliable and lifts quarantine

In a decision dated 11 November 2020, a Portuguese court of appeal delivered a judgment against the regional health authority of the Azores regarding a lower court decision declaring the quarantine of four persons illegal. Of these, one person tested positive for Covid with a PCR test; the other three persons were considered to have a high risk of exposure. As a result, the regional health authority decided that all four were infectious and posed a health risk and therefore had to be isolated. A procedure that we also continually experience with our health authorities.
The lower court had ruled against the health authority, and the court of appeal confirmed this decision with arguments that expressly support the scientific viewpoint of many experts, such as the former chief science officer of the pharmaceutical giant Pfizer, due to the lack of reliability of PCR tests.
The main points of the court decision are as follows:
A medical diagnosis is a medical act which only a doctor is legally authorised to perform and for which this doctor alone and fully is responsible. No other person or entity, including public authorities or courts, has such authority. It is not the responsibility of the regional health authority of the Azores to declare anyone sick or at risk to their health. Only a doctor can do this. No one can be declared sick or at risk to their health by decree or law, not even as an automatic administrative consequence of the result of a laboratory examination of any kind.
From this the court concludes that “if it is carried out without prior medical observation of the patient, without the involvement of a doctor certified by the Ordem dos Médicos who would have assessed the symptoms and requested the samples/examinations deemed necessary, any act of diagnosis, or any act of public health surveillance (such as determining whether there is a viral infection or a high risk of exposure, which is summarised in the above terms) violates [a series of laws and regulations] and may constitute a crime of usurpação de funções [illegal exercise of a profession], if these acts are carried out or dictated by a person who lacks the ability to do so, i.e. by a person who is not an authorised doctor [to practise medicine in Portugal, a degree is not enough; one must be considered qualified for ‘the medical practice’ by passing an examination with the Ordem dos Médicos]”.
In addition, the Court finds that the health authority of the Azores has violated Article 6 of the Universal Declaration on Bioethics and Human Rights by failing to provide evidence of the informed consent required in this declaration from the persons who were subjected to the PCR tests and who had complained about the mandatory quarantine measures imposed on them.
From the facts presented to the court, it concluded that there was no evidence or even indication that the four persons concerned had been examined by a doctor, either before or after the test was carried out.
Fundamental criticism of the PCR test by the court
The above would be sufficient to regard the forced quarantine of the four persons as illegal. However, the court found it necessary to add some very interesting observations about the PCR tests:
“Based on the current scientific evidence, this test [the RT-PCR test] is not in itself capable of unambiguously determining whether positivity actually corresponds to infection with the SARS-CoV-2 virus, and this for several reasons, of which two are of primary importance: the reliability of the test depends on the number of cycles used; the reliability of the test depends on the viral load present.”
Referring to Jaafar et al. (2020; https://doi.org/10.1093/cid/ciaa1491), the court concludes that “if a person tests positive by PCR, if a threshold of 35 cycles or higher is used (as is the norm in most laboratories in Europe and the USA), the probability that this person is infected is <3%, and the probability that the result is a false positive is 97%”. The court also notes that the cycle threshold used for the PCR tests currently performed in Portugal is unknown.
Referring to Surkova et al. (2020; https://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30453-7/fulltext), the court further states that any diagnostic test must be interpreted in the context of the actual probability of the disease, as it is self-assessed before the test is taken, and expresses the view that “in the current epidemiological landscape, the probability that Covid-19 tests will produce false positive results is increasing, with significant implications for individuals, the health system and society”.
The court’s summary of the decision on the regional health authority’s complaint is as follows:
“Given the scientific doubt expressed by experts, that is, those who play a role, about the reliability of the PCR tests, given the lack of information about the analytical parameters of the tests and in the absence of a medical diagnosis indicating the presence of an infection or a high risk, this court can never determine whether C was actually a carrier of the SARS-CoV-2 virus, or whether A, B and D were at high risk.”
Effect of the judgment
This judgment should have massive legal consequences in Portugal. There is also an earlier decision from the Constitutional Court which declared a decision by the regional government of the Azores to force any passenger landing at an airport in the territory into a 14-day quarantine to be an illegal deprivation of liberty.
It must also be expected that courts in other EU countries could use these judgments as an opportunity to also address the scientific basis that was decisive for these judgments.
As we can see from the development of the pandemic in Italy, it was the PCR tests and the subsequent official measures that led to a massive increase in deaths, both with and without infection. Covid-19 diseases and SARS infections were discovered in Italy from the summer of 2019, long before anyone knew what they were.