APHA 2004 Overview of public health law powers and limits
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Transcript APHA 2004 Overview of public health law powers and limits
APHA 2004
Overview 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
[email protected]
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 nonintercourse 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