APHA 2004Overview of public health law powers and limits:

Surveillance, outbreak investigations, emergencies, infectious diseases

Edward P. Richards, JD, MPHDirector, Program in Law, Science, and Public Health

Harvey A. Peltier Professor of LawLouisiana State University Law Center

Baton Rouge, LA 70803-1000richards@lsu.edu

Slides and other info: http://biotech.law.lsu.edu/cphl/Talks.htm

Controlling Communicable Diseases

Most legally contentious because of the direct impact on individuals

What are the public health actions the law needs to support?

Surveillance

The beginning point for all disease control What is the incidence and prevalence of the

disease? Are these changing?

Is there a new disease? In the community? Anywhere in the world

Case Investigation and Notification

Who is infected? Is there an index case? Who is at risk of the disease? What can contacts do to reduce the risk of

contracting or spreading the disease?

Outbreaks

What is an outbreak? Controlled diseases are increasing beyond

expectations New diseases such as West Nile Diseases that should not be in the community

What can be done to manage the outbreak?

Emergencies

Most outbreaks are not emergencies What makes an emergency?

Public fear, often driven by the media Real threats to the public - West Nile Smallpox

How do public health powers change in an emergency?

Constitutional Basis for Public Health Powers to Control Communicable Disease

The 1798 Yellow Fever Epidemic

For ten years prior, the yellow fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New York and Philadelphia. (Argument of counsel in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41 (1849))

Public Health in the Colonies

Most of the population lived in poorly drained coastal areas Cholera Yellow Fever

Urban Diseases Smallpox Tuberculosis

Average Life Expectancy in cities was 25 years

The Consequences of Communicable Diseases in the Colonies

There is clear original intent of the drafters of the Constitution to give broad powers to the states to control communicable diseases

State constitutions also have broad powers to control communicable diseases

There have been few successful challenges to these laws There was no real opposition to the laws until HIV/AIDS Political support has declined as successful public health

has reduced the fear of communicable diseases

Basic Powers to Control Communicable Diseases

Health Department Duties

To protect the public health Some state laws mandate that the health

department act against known public health risks

There can be liability for not acting To work effectively with the community, which

requires balancing individual rights with the public's protection

Mandatory Reporting of Communicable Diseases

Started in the colonial period Physicians Health care providers Others with relevant information

Contents of the report can include: Nature of the disease and exposure Name and address Possible contacts

What about Privacy?

No right of privacy when the individual's condition threatens the public health No right to veto the report No duty to inform the patient that you will make

the report Strong policy reasons to not inform the patient

Public health reporting is exempt from HIPAA, but many health care providers do not understand this

Can the Health Department Keep Information Private?

Who can get public health investigation info? Restaurant inspections? STI records?

The state controls access to public information Legal privilege Freedom of Information Act exceptions

Look to your state law The feds may preempt state protections

Case Investigation

Right to interview the contact While the state could punish individuals for

lying, few health officials support this Talk to enough people and you will get the

necessary info Right to do administrative searches

Medical records Premises

Partner/Contact Notification

Telling contacts that they are exposed Helping with testing and treatment Explaining how to avoid spreading the diseases Very controversial for HIV

Public Health Orders

Orders to get testing Orders to get treatment Orders to refrain from dangerous behavior

Prostitution for HIV carriers Food handling for typhoid carriers

Routine isolation and quarantine Tuberculosis

Actions Against Property

Seizure of contaminated food or other products Regulation and closing of businesses that

endanger the public health Gay Bathhouses Restaurants with poor sanitation

Nuisance abatement Standing water for mosquito control

Standards for Reviewing Public Health Actions

Courts defer to the expertise of the agency The legal standard is whether the agency action is

reasonably related to the agency's objective Also known as the arbitrary and capricious

standard Courts will not review the policy behind the

decision, setting policy is the role of the legislature and the agency

Due Process

Notice to the person of the order and how to comply Should provide the means of treatment and testing Can be contested

Injunctions and habeas corpus Court will have a hearing to determine

reasonableness Enforced by contempt of court and statutory

penalties

Outbreaks

Same powers as for day to day communicable disease control

More intensive use of these on the targeted disease Redirecting personnel Involving other agencies

Development of outbreak specific strategies Monitoring for the development of an emergency

Powers in a Communicable Disease Emergency

When there is a real communicable disease threat to the public, the courts have never interfered with public health actions

Courts may assign costs later, depending on statutory and constitutional provisions

Liability for Public Health Actions

Individuals All states have immunity for personal actions

for state employees in the scope of employment

Contractors need specific protections Institutions

Most states have sovereign and governmental immunity (Louisiana is an exception)

Questions and Answers