Ethical and Legal Aspects of Disaster Response: Legal PreparednessAugust, 2012
Barbara L Folb, MM, MLS, MPHPublic Health InformationistHealth Sciences Library SystemUniversity of [email protected]
Agenda
• Definitions, background, class reading• Core elements of legal preparedness (Moulton
2003)– Associated information resources
Objectives
• Describe the legal structure supporting disaster planning and response.
• Recognize the interaction of ethics and law in disasters.
• Plan a search for legal information.• Describe how key historical events such as
9/11, SARS and pandemics have shaped present approaches to disaster law.
Limitations
• You will not be a legal researcher at the end of the class.
• Librarians without law degrees can’t give legal advice. No practicing law without a license.!
How often do you receive requests for legal information from library patrons?
A. FrequentlyB. OccasionallyC. SeldomD. Never
Does your workplace have a manual or guide for emergencies/ disasters that includes legal information?
A. YesB. NoC. Not sure
Public health emergency preparedness definition
“…public health emergency preparedness (PHEP) is the capability of the public health and health care systems, communities, and individuals, to prevent, protect against, quickly respond to, and recover from health emergencies, particularly those whose scale, timing, or unpredictability threatens to overwhelm routine capabilities. “
(Nelson 2007)
Public Health Legal Preparedness
…a subset of public health preparedness and can be defined as attainment by a public health system (…of a community, a state, the nation, the world community) of legal benchmarks essential to the preparedness of the system.
(Moulton 2003)
Disasters, Emergencies
• Definitions situational• Good legal definition will clarify conditions
that trigger actions
Pre-class reading
• Moulton, A. D., Gottfried, R. N., Goodman, R. A., Murphy, A. M., & Rawson, R. D. (2003). What is public health legal preparedness? The Journal of Law, Medicine & Ethics : A Journal of the American Society of Law, Medicine & Ethics, 31(4), 672-683. Retrieved from http://hdl.handle.net/2027.42/71834
Is legal preparedness information available?
A surprising finding is how rare such information resources [legal preparedness] are. With some exceptions, there appear to be few, if any, published manuals on public health emergency law for government and hospital attorneys, “bench books” for judges to brief themselves on evidentiary standards for public health search warrants and quarantine orders, or databases of extant state and municipal public health emergency statutes and regulations.
(Moulton, 2003, pg 674)
Class Reading Question 1• Moulton names four core elements of public health
legal preparedness. Which of the following is NOT one?
A. CompetenciesB. Cross-jurisdictional, cross-sectoral coordinationC. EthicsD. InformationE. Laws
Question 1 Answer• Moulton names four core elements of public health
legal preparedness. Which of the following is NOT one?
C. Ethics
Ethics, Legal Authority Foundational to Preparedness
Ethics, Health Law and Disasters
Goal: Balance the rights of individuals with the needs of societyChallenge: No uniform belief about where the balance should be set
• Individual liberty– Due process protections
• Constitutional property rights – protects against unreasonable
search and seizure– Just compensation
• Protect community from disease– Quarantine, isolation laws
• Community safety– Seizure of private property
posing a danger– Use of property
PUBLIC HEALTH LEGAL PREPAREDNESS : CORE ELEMENTS
CORE ELEMENT: LAWS
Class Reading Question 2According to Moulton, which of the following are
considered law?A. Executive orders from president or governorB. Judicial rulingsC. Memorandum of understanding between hospitals and public health
agenciesD. Mutual aid agreements between statesE. RegulationsF. StatutesG. All of the above (A-F)H. Only A, B, E, and FI. Only C and D
Class Reading Question 2 Answer According to Moulton, which of the following are
considered law?A. Executive orders from president or governorB. Judicial rulingsC. Memorandum of understanding between hospitals and public health
agenciesD. Mutual aid agreements between statesE. RegulationsF. StatutesG. All of the above (A-F)
Building blocks of law
• Constitutions• Statutes• Regulations = Rules• Common law = court rulings
Federalism
• Under the U.S. Constitution and Bill of Rights, states have sovereignty over matters not specifically delegated to Congress or to the President or to the federal judiciary.
State “Police Power”
• Power to assure the health & safety of the population– Regulation of persons– Regulation of businesses, organizations, and
professionals– Prevention, mitigation of dangers and nuisances
• State may delegate powers to local government
U.S. Constitution: “Limited” federal powers
• Tax and spend
• General welfare
• Regulating commerce
Article 1, section 8
The Congress shall retain Power
To lay and collect Taxes, Duties, Imposts and Excises,
to pay the Debts and provide for the common Defence and general Welfare of the United States; …
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes
How might federal power to regulate interstate commerce affect health?
Example: State Sovereignty, Notifiable Diseases
Assessing public health law – 1988
State public health laws are in many cases seriously outdated. Statements of public health agency authority, responsibility, and organizational structure are inadequate to deal with contemporary problems. Procedural safeguards protecting individual rights are frequently weak or absent.
(IOM, 1988)
Public Health Pre Anthrax Attacks
• Low state and local laboratory capacity• Low access to computers, Internet• Low coordination with other agencies• Public health agencies unsure of their role• General public confused about public health’s
role• Workforce not training for terrorism response
(Gursky 2012)
Prep Law Development spurred by anthrax attacks•Anthrax key event, changed federal law, spending on public health, health care preparedness
State Law Changes• Model State Emergency Health Powers Act
– Drafted at request of the CDC– Used to evaluate existing state law– State adoption of portions of the law varied
• Majority of states adopted some elements • Most common changes:
– Defining of “public health emergency”– Public health emergency reporting– Isolation and quarantine– Immunity for state, private actors
Federal Law Changes
• Document:– Timeline, Major Disaster Events and Law
Developments, 1950- 2010 (in Moodle)
Key Health Preparedness Laws
• Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (June 2002)
• Homeland Security Presidential Directive 8 (12/17/2003)
• Homeland Security Presidential Directive 10 (4/28/2004)
• Project Bioshield Act of 2004 (July 2004)http://www.hsdl.org/?collection/stratpol
Impact of Federal Laws
http://healthyamericans.org/states/?stateid=PA#section=2,year=2012,code=undefined
International Law
• WHO International Health Regulations, 2nd ed. 2005– http://www.who.int/ihr/en/index.html
• Reduce risk of the international spread of disease
• Minimize impact on trade and travel
Current issues in preparedness law • Are quarantine, isolation laws an unneeded
violation of personal rights? (Hodge 2012)• Laws allow multiple states of emergency to be
declared for a single event. Does this create overlap in authorities, confusion? (Hodge 2012)
• Is the legal workforce prepared to provide legal advice in real time? (Hodge 2012)
Current issues continued
• No uniform liability protection for all responders, creates inconsistencies. (Hodge 2012)
• Are state professional scope of practice laws flexible enough to address surge capacity for emergency vaccine administration? (O’Connor 2011)
• How do we measure legal preparedness?
CORE ELEMENT: COMPETENCIES
Competencies
• Know what the applicable law is and can access it.
• Apply the law correctly in a given situation.• Different job responsibilities require different
– Skills– Levels of proficiency
(Jacobson 2012)
“Most local public health and emergency management professionals relied on what they perceived the legal environment to be rather than on an adequate understanding of the objective legal requirements.”
Sources of Competency Standards
• Journal articles (Gebbie 2008; Hodge 2008)– Hodge 2008 – table of competency sources
• National Public Health Performance Standards– http://www.cdc.gov/nphpsp/– State, local standards
• CDC: Public Health Preparedness Capabilities: National Standards for State and Local Planning– http://www.cdc.gov/phpr/capabilities/index.htm
Training to support competency (1)
• CDC Public Health Law Program– http://www.cdc.gov/phlp/publications/type/resources.html
• CPHP Education Resource Guides– http://preparedness.asph.org/perlc/resourcereports.cfm
• NACCHO. Public Health and the Law: An Emergency Preparedness Training Kit– http://www.naccho.org/topics/emergency/PHPL/
Training to support competency (2)
• TRAIN, state, academic online learning management systems– TRAIN
• https://www.train.org/DesktopShell.aspx
– TRAMS• http://trams.jhsph.edu/trams/
• Table top exercises, live training
CORE ELEMENT: COORDINATION
Coordination is Multidirectional
• Vertical – layers of government, local to international
• Horizontal – between disciplines, organizations – Public health, health care, emergency
management, law enforcement, courts, etc.• May be facilitated or hindered by laws
Legal Issues in Coordination
• All parties must know the law– For their organization and others responding
• Who is in charge, can to what, situational– Ex: TB , A. Speaker case (Fidler 2007)
CORE ELEMENT: INFORMATION
Reading Question 3
• According to Moulton, which of the following is true about information sources supporting legal preparedness?
A. They are plentifulB. They are scarceC. There are enough of them, but they are hard
to find
Reading Question 3 Answer
• According to Moulton, which of the following is true about information sources supporting legal preparedness?
B. They are scarce
Information Needs
• Repositories of public health law– Databases of state law
• Current awareness of new law• Law “best practices”• Law practice guidelines
– Manuals for attorneys– Bench books for judges
(Moulton, 2003)
Repositories
• Likely hosts– Government agencies– Public health, health law research, advocacy,
training centers– Other professional interest groups in health and
law• Example: Homeland Security Digital Library: Policy &
Strategy• http://www.hsdl.org/?collection/stratpol
Evaluating Law Repositories• Are they complete?
– Statutes, regulations, court cases, executive orders all apply
• Are they in the right form for the purpose at hand?
• Are they up to date?• Who is their audience?
Which of the Following Areas Would Be Important to Include in a Resource Guide for Multijurisdictional
Collaboration? Moderate to High Interest
http://sphhp.buffalo.edu/content/dam/sphhp/home/pdfs/emergency-preparedness-guide.pdf
Identifying government law repositories
• Look for agencies that regulate disaster response, or must comply with the law – Federal, state, and local
• EX: DHHS, Assistant Secretary for Preparedness and Response (ASPR),– http://www.phe.gov/preparedness/legal/Pages/d
efault.aspx • Consult a law librarian, law library websites
Non-governmental law repositories
• Locating law research, training, assistance centers – Who’s publishing?– CDC Public Health Law Program
• http://www.cdc.gov/phlp/technicalassistance/index.html
– Who’s funded? (RWJF, Kellogg, CDC PHLP etc)– Search public health, public health law conference
proceedings– Check Network for Public Health Law
http://www.networkforphl.org/
Michigan Public Health Code
http://www.networkforphl.org/_asset/smw6h3/Summary-CD-Action-General-MI-FINAL.pdf
Associations with Law Resources
• NACCHO. Public Health and the Law: An Emergency Preparedness Training Kit– http://www.naccho.org/topics/emergency/PHPL/
• ASTHO (Association of State and Territorial Health Officers)– www.astho.org/
• AHLA (American Health Lawyers Association)– www.healthlawyers.org/
Help Finding Federal Law
• Forte, E. J., Hartnett, C. J., & Sevetson, A. (2011). Fundamentals of government information: Mining, finding, evaluating, and using government resources. New York: Neal-Schuman Publishers. – Sections on law, regulation, courts very useful
• Law librarian colleagues• Law school – legal research classes• AALL – American Association of Law Libraries
– http://www.aallnet.org/
List of State Law Websites
• Justia• Example: Pennsylvania websites
– http://www.justia.com/us-states/pennsylvania/
Model State Emergency Health Powers Act (MSEHPA)
• Links to the model law, check list– http://www.publichealthlaw.net/ModelLaws/MSEH
PA.php – http://www.cphp.pitt.edu/upcphp/benchbook.pdf
• Summary matrix, state decisions as of August 1, 2011. – http://www.networkforphl.org/_asset/80p3y7/MS
EHPA-States-Table-06142012.pdf
Legal Indicators Project
• Database of full text of public health preparedness state laws from 12 states, searchable by keyword– http://www.phasys.pitt.edu/research/prototypes.
html • Video with Elizabeth Ferrell Bjerke, JD, co-
investigator on the project– http://media.hsls.pitt.edu/media/BjerkeInterview
1-bf0712/interview.html
Current Awareness-Proposed legislation, regulations
• Organizational Compilations– CDC Public Health Law News
• http://www.cdc.gov/phlp/news/current.html
– AHA Emergency Readiness• http://www.aha.org/advocacy-issues/emergreadiness/i
ndex.shtml
• GPO Fdsys– Federal Register– Congressional Bills
Toolkits
http://www.apctoolkits.com/isolationandquarantine/
Best Practices
“Best practices guidelines typically are based on information derived from practical experience and outcomes that is evaluated through a systematic methodology.”
(Rees 2008)
Best Practices Sources
• Public health emergency exercises• Applied research• Lessons learned• Benchmarking projects
Best Practices Examples• CDC, ASTHO
– Social Distancing Law Assessment Project• http://www.cdc.gov/phlp/publications/social_distancing.html
– ASTHO Useful Practices • http://www.astho.org/Programs/Preparedness/States-of-Prepared
ness/Useful-Practices/
• AHLA– Lessons Learned from the Gulf Coast Hurricanes. 2007
• http://www.healthlawyers.org/hlresources/PI/InfoSeries/Documents/Lessons Learned.pdf
Practice Guidelines for Legal Professionals
• Benchbooks• Locating them: Internet
search for public health bench books
• Guides for attorneys– American Health Law
Association– Public Health Law
Associationhttp://www.cphp.pitt.edu/upcphp/benchbook.pdf
Key Journals
• American Journal of Public Health (PMC 2 yr)• Biosecurity and Bioterrorism: Biodefense Strategy,
Practice and Science (PMC 1 yr)• Disaster Medicine and Public Health Preparedness• Journal of Law, Medicine and Ethics• Law Review journals (various titles)
Exercise
• You are working on a multi-organizational team developing a local pandemic influenza response plan. – List at least 3 legal resources you would consider
consulting for this project, and why
PubMed for Legal Preparedness
• Disaster-Related MeSH– http://sis.nlm.nih.gov/dimrc/mesh_disaster.html
• Legal MeSH– Jurisprudence http://
www.ncbi.nlm.nih.gov/mesh/68007603 and appropriate narrower terms– Legislation and jurisprudence http
://www.ncbi.nlm.nih.gov/mesh/81000331 subheading
• Ex: "Disaster Planning/legislation and jurisprudence"[Mesh]
Should you include law terms?
• How inclusive must you be?– Law is so fundamental to public health it may be
mentioned in an article not indexed for law terms• Ex: Weiss 2007 search terms
– hurricane and health– Law component determined by examining the
article
FINAL QUIZ!
Under the US system of law, what level of government has the most public health
authority?
A. FederalB. StateC. LocalD. Federal and state
are equal
Under the US system of law, what level of government has the most public health
authority? (answer)
B. State
Which of these statements is most true about emergency public health law and ethics?
A. They are in complete agreement.B. The laws attempt to balance the ethically derived
rights of individuals and the community .C. Laws change but ethics do not.D. Laws define ethics clearly enough to remove
doubt about the ethics of public health decisions.
Which of these statements is most true about emergency public health law and ethics? (answer)
B. The laws attempt to balance the ethically derived rights of individuals and the community .
Disaster planners can benefit more from reading the original text of a law than from reading a summary
from their legal counsel on their question.
A. TrueB. False
Disaster planners can benefit more from reading the original text of a law than from reading a summary from their legal counsel on their question. (answer)
B. False
For After Class
• Other classes in the Disaster Information Specialist Certificate series• http://www.mlanet.org/education/dis/
• Archived, upcoming classes • Moodle: Access to related documents, Internet links
Acknowledgements
• University of Pittsburgh– Elizabeth Ferrell Bjerke,
JD– Tina Hershey, JD– Kurt Holliday– Jared Galvan– Hasan Guclu, PhD– Margaret Potter, JD
• MLA– Debra Cavanaugh
• NLM– Siobhan Champ-Blackwell– Cindy Love
• CDC Public Health Law Program– Matthew Penn, JD, MLIS
This project is funded by the National Library of Medicine under contract HHS-N-276-2010-00782-P.
References• Centers for Disease Control and Prevention (CDC). (2011). Summary of
notifiable diseases: United states, 2009. MMWR.Morbidity and Mortality Weekly Report, 58(53), 1-100. Retrieved from http://www.cdc.gov/mmwr/PDF/wk/mm5853.pdf
• Committee on Guidance for Establishing Crisis Standards of Care for Use in Disaster Situations. Institute of Medicine. (2012). In Hanfling D., Altevogt B. M., Viswanathan K. and Gostin L. O. (Eds.), Crisis standards of care: A systems framework for catastrophic disaster response. Washington, DC: National Academies Press.
• Federal Emergency Management Agency (FEMA). (2012). CERT liability guide: A risk management overview for local CERT programs. Retrieved July 21, 2012, from http://www.citizencorps.gov/cert/downloads/pdf/CERT_Liability_Guide.pdf
References 2• Fidler, D. P., Gostin, L. O., & Markel, H. (2007, Winter; 2012/5). Through the
quarantine looking glass: Drug-resistant tuberculosis and public health governance, law, and ethics.3 Journal of Law, Medicine and Ethics 35(4), 616-28.
• Forte, E. J., Hartnett, C. J., & Sevetson, A. (2011). Fundamentals of government information: Mining, finding, evaluating, and using government resources. New York: Neal-Schuman Publishers.
• Gebbie, K. M., Hodge Jr., J. G., Meier, B. M., Barrett, D. H., Keith, P., Koo, D., . . . Winget, P. (2008). Improving competencies for public health emergency legal preparedness. Journal of Law, Medicine and Ethics, 36(SUPPL. 1), 52-56.
• Gursky, E. A., & Bice, G. (2012). Assessing a decade of public health preparedness: Progress on the precipice? Biosecurity and Bioterrorism : Biodefense Strategy, Practice, and Science, 10(1), 55-65. doi: 10.1089/bsp.2011.0085
References 3• Hodge Jr., J. G., Gebbie, K. M., Hoke, C., Fenstersheib, M., Hoffman, S., & Lynk, M.
(2008). Assessing competencies for public health emergency legal preparedness. Journal of Law, Medicine and Ethics, 36(SUPPL. 1), 28-35.
• Hodge, J. G. (2008). Principles and practice of legal triage during public health emergencies. NYU Annual Survey of American Law, 64(2), 249-291.
• Hodge Jr., J. G. (2012). The evolution of law in biopreparedness. Biosecurity and Bioterrorism, 10(1), 38-48.
• Jacobson, P. D., Wasserman, J., Botoseneanu, A., Silverstein, A., & Wu, H. W. (2012). The role of law in public health preparedness: Opportunities and challenges. Journal of Health Politics, Policy and Law, 37(2), 297-328.
References 4• Moulton, A. D., Gottfried, R. N., Goodman, R. A., Murphy, A. M., & Rawson, R. D.
(2003). What is public health legal preparedness? The Journal of Law, Medicine & Ethics : A Journal of the American Society of Law, Medicine & Ethics, 31(4), 672-683. Retrieved from http://hdl.handle.net/2027.42/71834
• Naval Postgraduate School Center for Homeland Defense and Security.Homeland security digital library (HSDL): Policy & strategy section. Retrieved July 31, 2012, from http://www.hsdl.org/?collection/stratpol
• O'Connor, J., Jarris, P., Vogt, R., & Horton, H. (2011). Public health preparedness laws and policies: Where do we go after pandemic 2009 H1N1 influenza? The Journal of Law, Medicine & Ethics, 39, 51-55. doi: 10.1111/j.1748-720X.2011.00566.x
References 5• Rees, C. M., O'Brien, D., Briss, P. A., Miles, J., Namkung, P., & Libbey, P. M. (2008).
Assessing information and best practices for public health emergency legal preparedness. The Journal of Law, Medicine & Ethics, 36, 42-46. doi: 10.1111/j.1748-720X.2008.00259.x
• Weiss, R. I., McKie, K. L., & Goodman, R. A. (2007). The law and emergencies: Surveillance for public health-related legal issues during hurricanes katrina and rita./American Journal of Public Health, //97 Suppl 1/, S73-81. doi: 10.2105/AJPH.2006.104240
Image Credits 1• Anthrax Reward Poster
– http://en.wikipedia.org/wiki/File:Anthraxreward.jpg • Legal, Ethical Foundations of Crisis Standards of Care
– Reprinted with permission from Crisis standards of care: A systems framework for catastrophic disaster response., 2012 by the National Academy of Sciences, Courtesy of the National Academies Press, Washington, D.C.
• Public Health Officers ( 2 images)– CDC. Public Health Image Library
• Scale of Justice– http://commons.wikimedia.org/wiki/File:Balance_justice.png
• US Capital – http://commons.wikimedia.org/wiki/File:US_Capital_Building.jpg
Image Credits 2• US Supreme Court
– http://commons.wikimedia.org/wiki/File:Supreme_Court_US_2009.jpg • White House
– http://commons.wikimedia.org/wiki/File:WhSouthLawn.JPEG • U.S. Constitution
– http://www.archives.gov/exhibits/charters/charters_downloads.html • You Can’t Take it With You
– http://commons.wikimedia.org/wiki/File:You_can%27t_take_it_with_you_-_NARA_-_518155.jpg