Management Issues in Outbreak Investigations: Part 1, Emotional and Legal Considerations M. Joan Mallick, R.N., Ph.D.

Management Issues in Outbreak Management Issues in Outbreak Investigations: Part 1, Emotional and Investigations: Part 1, Emotional and

Legal ConsiderationsLegal Considerations

M. Joan Mallick, R.N., Ph.D.

BackgroundBackground

I served for four years as the Health Commissioner of a large urban public health department. During my tenure I directed the investigation of several large illness outbreaks. As I was following the CDC investigation of the anthrax outbreak in late 2001, I was reminded of the significant role management plays in the successful implementation of the scientific aspects of outbreak investigations.

Outbreak investigations are always public events. People who have spent quite lives are thrust into the limelight either as those who have become ill or those whose actions may be associated with the illness outbreak

Administrative decisions facilitate or impede access to the people and places where important information is harbored. Administrative communications instill or undermine confidence in the findings and recommendations of outbreak investigations. Public health administrators must be able to appropriately apply public health law; be willing to take quick action given information at hand (Gerberding, 2002); and have skills in diplomacy, the trust of colleagues in the community and good media relations.

Learning ObjectivesLearning ObjectivesThe technical aspects of outbreak investigation have been adequately described elsewhere (Outbreak Investigations-A Perspective; How to Investigate an Outbreak). The purpose of this course is to describe the administrative decisions that impact on outbreak investigation, helping or hindering the scientific aspects of the investigation.

Objectives ContinuedObjectives Continued

At the conclusion of Part 1 the student will be able to – recognize the emotional issues that bear

upon outbreak management– describe instances where public health

laws apply to outbreak investigations– discuss the special circumstances

associated with restaurant-related outbreaks

Performance ObjectivesPerformance Objectives

At the conclusion of Part 1 of this course the student will be able to– recognize behaviors that indicate anxiety in

response to an illness outbreak– locate public health laws that apply to outbreak

investigations in a specific state or territory– describe the risks to business caused by

restaurant-related outbreaks describe industry guidelines for actions by

restaurateurs during outbreaks

For administrative purposes an outbreak should be thought of as a CRITICAL incident in which– events outside normal experience– occur suddenly and unexpectedly and– disrupt one’s sense of control – including the perception of threat to life and

incomeMany administrative decisions involve

coping with these perceptions

Common responses to health Common responses to health departments’ efforts to investigatedepartments’ efforts to investigate

When public health personnel advise organization administrators that an investigation is required, reactions include– Threats to go to the bosses– Threats of lawsuits– Refusal to provide important information

Common ReactionsCommon Reactions

Common ReactionsCommon Reactions

Insistence on learning who reported the incident to the health department

Refusal to allow health department staff into an establishment

Insistence on conducting a private investigation

First Steps in Calming the WatersFirst Steps in Calming the Waters

The announcement of an investigation should initially come from a person of equal or higher organizational status than the primary person in the organization involved– it is a sign of respect for the affected administrator– early discussions can serve as diplomatic as

diplomatic meetings removed from the fray of the investigation and more likely to secure overall cooperation.

Once general cooperation is secured follow-up activities can be delegated to lower level staff. Their activities should – be conducted within the chain of command

of the affected organization– never include threats– be discussed with a HD supervisor if

cooperation breaks down at his/her level carefully review staff activities for possible

missteps leading to stalled activities

Health Department Actions in Health Department Actions in Response to Specific Response to Specific

BehaviorsBehaviors

The following slides provide suggestions for responding to specific behaviors of those affected by an outbreak

Anger at the Health DeptAnger at the Health Dept They say the

Health Department is

– taking too long to conclude

– not thorough enough

– hiding findings

You Say– We will be happy to

review and discuss procedural aspects of the investigation with you so you can get an idea of what is involved in the investigation

– We will consider any ideas about how to improve our performance

– share findings as they are made

Anger at the Health Anger at the Health DepartmentDepartment

They say– We will speak to your

board of health members

governmental supervisor

You say– Here are their phone

numbers

Insistence on learning the Insistence on learning the name of person reporting the name of person reporting the

outbreakoutbreak You say:

– the law specifies this as confidential information

– everyone involved in the investigation will need confidentiality protection. You will be protected by the same laws

They say– I won’t go along with

this until I know who reported this to you

Desire to conduct a “private Desire to conduct a “private investigation”investigation”

They say– we can do

our own investigation

You say:– you may conduct a

parallel investigation (but not a substitute)

if it does not interfere with the HD activities

Legal Authority*Legal Authority* Health departments have specific legal

authority to conduct investigations– Most applicable laws are state statutes– city statutes may provide additional legal leverage

Visit http://www.lawsonline.com/ for copies of state health laws and find the– health codes for your jurisdiction that broadly define

HD powers and– associated rules that more provide more specific

guidelines for step-wise application of the laws

Contents of this course should not be substituted for professional legal advice

Health Department administrators should advise the department’s legal council about the outbreak investigation very early in the process.

Health Department lawyers can– instruct staff on how to apply laws appropriately– prepare written communications about the legal

authority of the HD that are to be given to affected agency managers

– deal with threatened lawsuits– advise as to when it is appropriate to end persuasive

efforts and move on to forceful legal action.

Will There Be a Legal Will There Be a Legal Showdown?Showdown?

Voluntary participation is always the goal. Health Department actions to encourage voluntary participation may include – explaining the nature of public health law– quoting laws in written correspondence– providing copies of relevant law– appealing to their altruistic natures

These activities assume that upon learning about the HD’s legal authority, affected managers will agree that voluntary participation will be beneficial for everyone in the long run

Threatened LawsuitsThreatened Lawsuits

They say– Someone is going to

pay for this– If you do . . . we will

sue

You saythe sole purpose of the

investigation is to find a cause and to prevent it from recurring

– we will refer you to our lawyers if you want to discuss a law suit

Refusing EntryRefusing Entry

They will NOT say– what if you find

some other problem and report me to other governmental agencies?

Expect that this reaction is always on the agenda. Before starting the investigation, and if state laws apply, advise that – HD activities are only for

purposes of finding the cause of the illness

– Reports to other agencies are made only if violations directly affect the outbreak development

The Legal Basis of Public Health

Withholding ListsWithholding Lists

They say– I’m not going to

give you a list of who was involved until you. . .

– I can’t seem to find the list right now

You Say– without a list the

investigation cannot be conducted

– we’re sure you don’t want to be thought of as someone who prevented resolution of this problem

Withholding Medical RecordsWithholding Medical Records

Physicians say:– I must have

authorization from the people I examined before I can give you their medical records

You say:– Public health law

allows release of information without consent in outbreaks

– We will provide reference to or a copy of the applicable law along with our written request for the records

Withholding Event DetailsWithholding Event Details

They say– I’m afraid I’ll lose my

job if I tell you everything that happened

You say

– By law all information about this investigation is confidential

your name will not be revealed

you will not be connected to the information you provided

Legal ActionsLegal Actions

It is very important that no one from the HD threatens legal action in order to gain cooperation.– this is considered to be coercion– any consent given after threats is invalid

Any mention of legal action should be withheld until legal council has advised that persuasive measures have been exhausted– At that time discussing legal action is in the nature

of advising of imminent action because of ongoing lack of voluntary cooperation

Legal ActionsLegal ActionsLegal action against uncooperative

organizations may include– search warrants– subpoenas for information– mandates for treatment– restrictions on activities

Petitions for Legal ActionsPetitions for Legal ActionsAuthority to take specific actions, regardless of

the authority granted by public health law must be granted by a judge. Be prepared to provide the judge with information about– the need for access (I.e., public health threat)– failed efforts to secure cooperation

how many how often what was involved what was the response

Petitions for Legal ActionsPetitions for Legal Actions

Because of the detail needed to secure legal authority to act it should be part of HD policy that any administrative actions associated with the scientific investigative activities are documented in detail as they are taken

Congratulations!Congratulations!

You have just faced the majorproblems of the first hour of most outbreaks!

Now it is time to consider Now it is time to consider special issues that arise in special issues that arise in

restaurant-related outbreaksrestaurant-related outbreaks

The threat to business viability is a legitimate consideration for restaurant owners– foodborne illness outbreaks have resulted in

restaurant closures Six Restaurants Closed– outbreaks associated with a restaurant may

expose the restaurant to lawsuits Outbreaks and Restaurant Lawsuits ; Lawyers specializing in foodborne illness lawsuits

Health Department staff must take this issue into consideration and make all efforts to support long term business viability– the administrative decision to close a restaurant

should be made as a last resort

Restaurant Trade Restaurant Trade AssociationsAssociations

Many larger restaurants are members of centrally managed or franchise chains.– there will often be standardized policy and

procedure manuals

There is a national restaurant trade association that provided guidelines

The guidelines often offer advice on how to limit outbreak investigations to in-house activities

We Can Take Care of ThisWe Can Take Care of This

The national restaurant association has a Crisis Management Manual that includes suggestions for responding to a food-borne illness. The manual provides guidelines for internal and external responses to foodborne outbreaks. (National Restaurant Association, 1200 17th St. Washington, DC, 2002. (The manual is not available online)).

We Can Take Care of ThisWe Can Take Care of This

These guidelines advise restaurateurs to – Record and evaluate illness complaints for their

legitimacy including such criteria as complainant’s attitude consistency of complaint information detailed information about the nature of the illness

– Request HD involvement once the complaint has been judged to be valid

Say What????Say What????

The guidelines include the following statements:

“Inviting regulatory intervention might seem ridiculous; on the other hand, some local ordinances may require you to report suspected outbreaks.”

“. . .health departments and other regulatory agencies have the potential to . . . harm your operation by overreacting and making strong media statements.”

Don’t expect Don’t expect restaurant staff restaurant staff to be happy to to be happy to

see you!see you!

Given that a hostile reception is possible HD staff can take measures that will improve cooperation.

Actions supportive of restaurant Actions supportive of restaurant ownersowners

If customers are in the restaurant when the investigation begins– Avoid broadcast announcements of the problem– Assign someone to the door to speak with

customers as they leave Provide written information about the concerns

and investigation process. CDC Food borne Illness Home Page has a variety of printable forms on food borne illnesses

assign staff to contact customers table by table

Restaurant ClosureRestaurant Closure If the restaurant must be closed for remedial

action– assure owners that they may reopen as soon as

source of problem has been identified and remediated

– in order to allow owners some sense of control consider allowing them to post their own “closed” sign

check with the HD’s legal council to determine whether the posting of the closure must include details of the health code violations.

if not, allow the owner to post his/her own sign as approved by the HD

– remind them that the HD will tell them when the sign can come down

What about staff?What about staff?

When an investigation involves restriction of food handling staff but not restaurant closure, owners tend to fire or lay them off– they anticipate a loss of business and reduced ability to

pay staff– they suspect that staff are to blame and seek

punishment In order to clarify that the health department is not

recommending that be relieved of all duties, restriction letters should specify that the staff member(s) may still perform other duties in the facility

Do the customers need Do the customers need medical follow up?medical follow up?

The HD administrator must decide where customers should/can go for follow up– does the HD have clinics that can provide

appropriate follow up?– do other facilities in the community have better

follow-up services? notify them of possible surge of patients

– work with HD’s medical director to determine what information should be given to health care providers

provide guidance in writing

This concludes Part 1 of this This concludes Part 1 of this coursecourse

Part 2 of this course (coming soon) will discuss more about how

to communicate with the public and how to make the media your

friend during an outbreak investigation