17. In fact, the only element that appears in the proven facts, in this regard, is the performance of RT-PCR tests, one of which presented a positive result in relation to one of the applicants.
i. However,
in view of the current scientific evidence, this test is, in itself, incapable of determining, beyond reasonable doubt, that such positivity corresponds, in fact, to the infection of a person by the SARS-CoV-2 virus, by several reasons, of which we highlight two (to which is added the issue of gold standard which, due to its specificity, we will not even address):
For this reliability depend on the number of cycles that make up the test;
For this reliability depend on the amount of viral load present.
ii. Indeed, the RT-PCR (polymerase chain reaction) tests, molecular biology tests that detect the RNA of the virus, commonly used in Portugal to test and enumerate the number of infected (after nasopharyngeal collection), are performed by amplifying samples , through repetitive cycles.
The number of cycles of such amplification results in the greater or lesser reliability of such tests.
iii. And the problem is that this reliability is shown, in terms of scientific evidence (and in this field, the judge will have to rely on the knowledge of experts in the field), more than debatable.
This is the result, among others, of the very recent and comprehensive Correlation study between 3790 qPCR positives samples and positive cell cultures including 1941 SARS-CoV-2 isolates , by Rita Jaafar, Sarah Aherfi, Nathalie Wurtz, Clio Grimaldier, Van Thuan Hoang, Philippe Colson, Didier Raoult, Bernard La Scola, Clinical Infectious Diseases, ciaa1491,
https://doi.org/10.1093/cid/ciaa1491,em https://academic.oup.com/cid/advance...le/doi/10.1093 / cid / ciaa1491 / 5912603 , published at the end of September this year, by Oxford Academic , carried out by a group that brings together some of the greatest European and world experts in the field.
This study concludes [2] , in free translation:
“At a cycle threshold (ct) of 25, about 70% of the samples remain positive in the cell culture (ie they were infected): in a ct of 30, 20% of the samples remained positive; in a ct of 35, 3% of the samples remained positive; and at a ct above 35, no sample remained positive (infectious) in cell culture (see diagram).
This means that if a person has a positive PCR test at a cycle threshold of 35 or higher (as in most laboratories in the USA and Europe), the chances of a person being infected are less than 3%. The probability of a person receiving a false positive is 97% or higher ”.
iv. What follows from these studies is simple
-the possible reliability of the PCR tests carried out depends, from the outset, on the threshold of amplification cycles that they contain, in such a way that, up to the limit of 25 cycles, the reliability of the test will be about 70%; if 30 cycles are carried out, the degree of reliability drops to 20%; if 35 cycles are reached, the degree of reliability will be 3%.
v. However, in the present case, the number of amplification cycles with which PCR tests are carried out in Portugal, including the Azores and Madeira, is unknown, since we were unable to find any recommendation or limit in this regard.
saw. For its part, in a very recent study by Elena Surkova, Vladyslav Nikolayevskyy and Francis Drobniewski, accessible athttps://www.thelancet.com/journals/lanres/article/PIIS2213-2600(20)30453-7/fulltext , published in the equally prestigious The Lancet, Respiratory Medicine , refers (in addition to the multiple questions that the very the accuracy of the test raises, regarding the specific detection of the sars-cov 2 virus, due to strong doubts regarding the fulfillment of the so-called gold standard ) (free translation):
“Any diagnostic test must be interpreted in the context of the actual possibility of the disease, existing before its realization . For Covid-19, this decision to perform the test depends on previous assessment of the existence of symptoms, previous medical history of Covid 19 or presence of antibodies, any potential exposure to this disease and no likelihood of another possible diagnosis. ” [3] “ One of the potential reasons for presenting positive results may be the prolonged shedding of viral RNA, which is known to extend for weeks after recovery, in those who were previously exposed to SARS-CoV-2. However, and more relevantly,
there is no scientific data to suggest that low levels of viral RNA by RT-PCR equate to infection, unless the presence of infectious viral particles has been confirmed by laboratory culture methods .
In summary,
Covid-19 tests that show false positives are increasingly likely, in the current epidemiological climate scenario in the United Kingdom, with substantial consequences for the personal, health and corporate systems . ” [4]
18. Thus, with so many scientific doubts, expressed by experts in the field, which are the ones that matter here, as to the reliability of such tests, ignoring the parameters of their performance and there being no diagnosis made by a doctor, in the sense of the existence of infection and risk, it would never be possible for this court to determine that AH___ had the SARS-CoV-2 virus, nor that SH__SWH__ and NK_ had high risk exposure.
19.In summary, it will be said that, since the appeal filed is inadmissible, due to lack of legitimacy and lack of interest in acting by the applicant, as well as manifestly unfounded, it will have to be rejected, under the terms of the in articles 401 nº1 al. a), 417 nº6 al. b) and artº420 nº1 als. a) and b), all of the Penal CP. iv - decision. In view of the above, and under the provisions of articles 417, paragraph 6, al. b) and 420 nº1 als. a) and b), both of the Penal Procedure Code, the appeal filed by the REGIONAL HEALTH AUTHORITY, represented by the Regional Health Directorate of the Autonomous Region of the Azores , is rejected .
Under the terms of paragraph 3 of article 420 of the CPPenal, the applicant is condemned in the procedural sanction of 4 UCs, as well as in the TJ of 4 UCs and costs.
Immediately inform the court “a quo” of the content of this judgment. Lisbon, November 11, 2020 Margarida Ramos de Almeida Ana Paramés __________________________________________________ _____ [1] [1] 2 - It is the responsibility of each ARS, IP, within the scope of the respective territorial circumscriptions: a) To implement the national health policy, in accordance with the global and sectoral policies, aiming at their rational organization and the optimization of resources;
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