Public Health Law: Powers and Limits in Controlling Communicable Diseases

1. APHA 2004Overview of public health law powers and limits:Surveillance, outbreak investigations, emergencies, infectious diseases Edward P. Richards, JD, MPH Director, Program in Law, Science, and Public Health Harvey A. Peltier Professor of Law Louisiana State University Law Center Baton Rouge, LA 70803-1000 richards@lsu.edu Slides and other info: http://biotech.law.lsu.edu/cphl/Talks.htm

2. Controlling Communicable Diseases • Most legally contentious because of the direct impact on individuals • What are the public health actions the law needs to support?

3. 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

4. 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?

5. 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?

6. 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?

7. Constitutional Basis for Public Health Powers to Control Communicable Disease

8. 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))

9. 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

10. 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

11. Basic Powers to Control Communicable Diseases

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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)

25. Questions and Answers