Emerging Infectious Diseases and the Law

1. Emerging Infectious Diseases and the Law Edward P. Richards, J.D., M.P.H. Professor of Law Executive Director Center for Public Health Law University of Missouri Kansas City http://plague.law.umkc.edu/cphl

2. Center for Public Health Law • Mission • The Center for Public Health Law is a research center based at the University of Missouri Kansas City School of Law. It is an interdisciplinary and inter-institutional Center with the goal of furthering research and service in public health law. • Personnel • Executive Director - Edward P. Richards, J.D., M.P.H. • Director for Medicine and Epidemiology - Katharine C. Rathbun, M.D., M.P.H. • Director for Ethics - Jerry Menikoff, J.D., M.D. • Host Institution • University of Missouri Kansas City School of Law

3. What Motivates ModernPublic Health? • Social Justice • Health People 2010 • Integrated Delivery System • NIH Future of Public Health Study • “Our Patients” • Unnamed State Health Director

4. Parens Patriae • "Parens patriae," literally "parent of the country,”... It is the principle that the state must care for those who cannot take care of themselves, such as minors who lack proper care and custody from their parents. • Blacks Law Dictionary • The King as Father

5. Modern Parens Patriae Powers • Child Welfare • Indigent Care • Wellness Programs • Mental Health Care

6. Why do Lawyers and Law Professors Like Parens Patriae? • Helping the Downtrodden • Empowering the Individual • Distrust of the State • Lots of Money in Suing for Individuals • Not Much Money in Representing the State • No Money or Private Practice in Public Health Law

7. What is the Alternative?

8. Police Power • Right of Societal Self-Defense • Right of the State to Protect Itself • Right of the State to Protect Its Citizens

9. History • From English Common Law • Core of Colonial Government • Key Power Reserved to the States • The Key Public Health Law Doctrine until the 1980s • Still the Doctrine Used by the Courts

10. Police Power v. Parens Patriae • The state has a legitimate interest under its parens patriae powers in providing care to its citizens who are unable because of emotional disorders to care for themselves; the state also has authority under its police power to protect the community from the dangerous tendencies of some who are mentally ill. • Addington v. Texas, 441 U.S. 418 (1979)

11. Why the Paradigm Matters • Parens Patriae • The Individual Is First • Society is just the Sum of the Individuals • Police Power • Ecological Model • Society is a Complex Organism

12. Practical Differences • Parens Patriae • Driven by Individual Medical Needs • Individual Lives Trump Statistical Lives • Protect Yourself From Disease • Police Power • Driven by Community Protection • Stresses Statistical Lives • Protect Others From Disease

13. Emerging Infectious Diseases • Demand Surveillance • Case Finding • Swift Action in the Face of Uncertainty • Protect Individuals Against their Will • Must Sometimes Sacrifice Individual Rights to Societal Protection • Same Issues in Bioterrorism

14. EID Control Depends on the Police Power How do We Restore the Police Power to Public Health?

15. Rethinking Public Health Services • Train Public Health Professionals in Public Health Law • Train Public Health Professionals in Traditional Public Health • Food and Water Sanitation • Infectious Disease Control • Vermin, Animal Control, and other Nuisance • Separate Acute Medical Services from Core Public Health