1 The Role of Law Concerning Historic and Modern Uses of Quarantine and Isolation September 10, 2008 James G. Hodge, Jr., J.D., LL.M. Associate Professor,

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The Role of Law Concerning Historic and Modern Uses of

Quarantine and Isolation

September 10, 2008

James G. Hodge, Jr., J.D., LL.M. Associate Professor, Johns Hopkins Bloomberg School of Public Health;

Executive Director, Centers for Law & the Public’s Health: A Collaborative at Johns Hopkins and Georgetown Universities

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Principal Objectives

• Historic Role of Law • Legal Distinction Between Quarantine and Isolation • Modern Quarantine and Isolation Laws and Policies

• Routine• Emergency

• Balancing Individual and Communal Interests

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Historic Role of Law

• The use of quarantine as a public health measure extends to biblical times • Quarantine has been practiced in the U.S. since colonial times • Early American quarantine laws, based on European models, date to 1647 (Boston), 1663 (NYC), and 1701 (MA).

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Historic Role of Law

• Early American laws focused on the use of quarantine in multiple settings to separate persons suspected of, or known to be, carrying disease from others. • Many existing state/local public health laws authorizing quarantine or isolation, fail to offer significant guidance for their use.

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New Jersey Law on “Quarantine”

• Diseases Generally: To prevent the spread of disease affecting humans, the Department of Health . . . . shall . . . (d) Maintain and enforce proper and sufficient quarantine, wherever deemed necessary. N.J. Stat. Ann. § 26:4-2 (2007).

• Venereal Diseases: Quarantine for venereal disease . . . includes restriction of the actions, behavior and movements of a person or confinement to a defined place and area. N.J. Stat. Ann. § 26:4-36 (2007).

• Vessels: A permit shall not be granted until after the vessel, and every person . . . on it, has been examined, cleansed, ventilated, and purified, and a quarantine period has been observed. N.J. Stat. Ann. § 26:4-102 (2007).

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New Jersey Law on “Quarantine”

• Prisoners: Each board . . . shall have power, in case of the existence of any contagious/infectious disease, to establish such quarantine regulations as deemed necessary and provide for the isolation of inmates. N.J. Stat. Ann. § 30:4-8 (2007).

• Migrant Camps. The person in charge of a migrant camp shall co-operate and assist in the enforcement of any quarantine or isolation measures imposed by any public authority. N.J. Stat. Ann. § 34:9A-13 (2007).

• Prayer-healing believers: Any person who . . . subscribes to the art of healing by prayer . . . which are opposed to medical treatment, shall not be required to submit to medical treatment [without informed consent]. They shall, however, be subject to regulations with reference to quarantine and isolation in case of contagious or infectious diseases . . . . N.J. Stat. Ann. § 30:4A-12 (2007).

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Legal Distinction Between Quarantine and Isolation

Though used often interchangeably in practice and law, quarantine and isolation have distinct legal meanings.

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Legal Meaning of Quarantine

• “Quarantine” - the physical separation and confinement of an individual or groups of individuals, who are or may have been exposed to a contagious or possibly contagious disease and who do not show signs or symptoms of a contagious disease, from non-quarantined individuals, to prevent or limit the transmission of the disease to non-quarantined individuals.

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Legal Meaning of Isolation

• “Isolation” - the physical separation and confinement of an individual or groups of individuals who are infected or reasonably believed to be infected with a contagious or possibly contagious disease from non-isolated individuals, to prevent or limit the transmission of the disease to non-isolated individuals.

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Modern Quarantine and Isolation Laws and Policies

• Routine – regular use of quarantine or isolation powers at various levels of government • Emergency – exceptional use of quarantine or isolation powers during declared states of emergency

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Routine Uses of Quarantine/Isolation Authority

LocalLocal

State/TribalState/Tribal

FederalFederal

Specific Diseases – e.g., TB, Measles

General Communic

-able Disease Threats

Specific Diseases – e.g., TB, Measles

General Communic-able Disease Threats

Specific Diseases – e.g., TB, Cholera

DiphtheriaYellow Fever

General Communic

-able Disease Threats

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Routine Uses of Quarantine/Isolation Authority

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Routine Uses of Quarantine/Isolation Authority - Federal

42 U.S.C. 264 - Public Health Services Act

(a) DHHS Secretary can regulate as “necessary to prevent the introduction, transmission, and spread of communicable diseases’’ from foreign countries and across states.

(b) Authorizes the ‘‘apprehension, detention, or conditional release’’ of individuals to prevent the spread of communicable diseases as specified in Executive Orders of the President.

(c) Provides the basis for foreign quarantine of persons. (d) Provides the basis for interstate quarantine of persons.

42 U.S.C. 243 - Federal government may assist and cooperate with and aid State and local governments in enforcing quarantine and other health-related regulations.

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State of Emergency

Once an emergency has

been declared, the legal

landscape changes.

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Emergency Declarations

How the legal landscape changes depends on the type of emergency declared

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Multiple Levels of Emergency Declarations

Local emergency or disaster

Local public health emergency

State/tribal emergency or disaster

State/tribal public health emergency

Federal “Stafford Act” emergency

Federal “DHHS” public health emergency

Depending on the emergency declaration, public health powers to quarantine or isolate vary

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Emergency Declarations – State Approaches

Before 9/11:

Existing state legal infrastructures focused on general emergency or disaster responses

“All hazards” approach

After 9/11:

Reforms of emergency laws in many states to address “public health emergencies”

Based in part on the Center’s Model State Emergency Health Powers Act (MSEHPA)

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States That Define “Public Health Emergency”

HIHIAKAK

CACA

OROR

WAWA

IDID

MTMT

TXTX

SDSDWYWY

NVNV

OKOK

KSKS

NENE

COCO

NMNMAZAZ

UTUT

NDND

SCSC

MNMN

WIWI

IAIA

MOMO

ARAR

LALA

VAVA

NCNC

GAGA

FLFL

ALALMSMS

ILILWVWV

KYKY

TNTN

NYNY

PAPA

ININ OHOH

MIMI

DEDENJNJ

CTCTRIRI

MAMA

MEME

DCDCMDMD

NHNHVTVT

PR - PR - (Puerto Rico)(Puerto Rico)VI - VI - (U.S. Virgin Islands)(U.S. Virgin Islands)

““Public health emergency” Public health emergency” or similar term defined in or similar term defined in state statutes as of April 2008state statutes as of April 2008

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“Public Health Emergency” Defined

• “Public health emergency”

An occurrence or imminent threat of an illness or health condition that (1) is believed to be caused by any of the following:

Bioterrorism

Appearance of a novel or previously controlled or eradicated infectious agent or biological toxin

Natural disaster

Chemical attack or accidental release

Nuclear attack or accident; and

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“Public Health Emergency” Defined

(2) poses a high probability of any of the following harms occurring in a large number of the affected population:

Death

Serious or long-term disability

Widespread exposure to infectious or toxic agent posing significant risk of substantial future harm

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The Model State Emergency Health Powers Act

Government is vested with specific, expedited powers to facilitate emergency responses including the expedited use of quarantine and isolation

Individuals are bestowed special protections and entitlements

Hospital privileging requirements may be waived

Volunteer responders may be protected from civil liability

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Emergency Uses of Quarantine/Isolation Authority - Federal

42 U.S.C. § 5121 et seq. - The Stafford Act

With a declaration of an emergency or disaster, DHS has extensive rulemaking power including the power to quarantine or isolate individuals.

42 U.S.C. 266 - Special quarantine powers in time of war

To protect the U.S. military in time of war against communicable diseases, DHHS’ Secretary may provide for the apprehension and examination of any individual reasonably believed to be (1) infected with such disease and (2) a probable source of infection to members of the armed forces or [civilian workers]. If such individual is infected, he/she may be detained “for such time and in such manner as may be reasonably necessary.”

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Balancing Individual and Communal Interests

• Clearly government has the power to quarantine or isolate to protect the public’s health in day-to-day and emergency settings. • How should individual interests be balanced with communal objectives?

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MSEHPA – Quarantine Perception

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MSEHPA – Quarantine Reality

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MSEHPA – Isolation Perception

Source: http://www.jamd.com/search?assettype=g&assetid =56285488&text=quarantine+in+the+public+health+

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MSEHPA – Isolation Reality

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Constitutional Requisites of Q and I

• The subject must be actually infectious or been exposed to infectious disease

• Safe and habitable conditions must be provided• Individuals must not be discriminated against in the enforcement of Q and I• Procedural due process protections must be

employed (e.g., notice, hearing, right to counsel)

Source: Fidler, DP, Gostin, LO, Markel H. Through the quarantine looking glass: Drug-resistant TB and public health governance, law, and ethics. JLME. 2007; Winter; 616-628.

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Reaching an Affirmative Balance - MSEHPA

• Protect the community

• Restrict personal freedoms

• Curtail individual choices

• Setting boundaries on specific activities

• Offer available treatment, palliative care, and other sustenance

• Provide due process protections

• Use least restrictive alternatives

• Offer means of communication

• Respect religious/philosophical beliefs

Public HealthIndividual Rights

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In Conclusion

• Questions, comments, thoughts

• For more information, please contact me or visit the Center’s website at: www.publichealthlaw.net

• Thank you!