New England States Progress Report on Summary of Statutes and Regulations of New England States Regarding the Involuntary Examination, Treatment and Isolation.

New England States

Progress Report on Summary of Statutes and Regulations of New England States Regarding the Involuntary Examination, Treatment and Isolation

of Persons with Communicable TB

March 19, 2009

Katharine Van TasselProfessor of Law

DefinitionsQuarantine

Historical Definition: the detention of persons suspected of carrying an infectious disease.

Modern Definition: the restriction of the activities of healthy persons who have been exposed to a communicable disease, during its period of communicability, to prevent disease transmission during the incubation period if infection should occur.

Definition of Combined New England Statutes: create a hybrid. The temporary detention of persons suspected of, or having, an infectious disease; who appear to be unwilling, or unable, to undergo testing or prescribed

treatment; and, who pose a threat to public

DefinitionsQuarantine

Goal of quarantine for many New England States:

Used to require testing, obtain assurances of future compliance with treatment or to protect public health during the time necessary to obtain a court order for long-term isolation

DefinitionsIsolation

The separation, for the period of communicability, of known infected persons, in such places and under such conditions as to prevent or limit the transmission of the infectious disease.

U.S. Constitutional Due Process Protections

Pre-confinement Measures:

an order requesting voluntary adherence to a treatment plan may be issued if government knows, or has reason to know, that an individual endangers community through the potential transmission of TB

  the voluntary treatment plan must be based on

best, currently available epidemiologic and medical evidence regardless of ability to pay

U.S. Constitutional Due Process Protections

Pre-confinement Measures (cont.):

an individual has a right to notice of consequences of failure to comply with voluntary treatment plan

all communications must be made in culturally, linguistically and educationally appropriate manner to facilitate understanding of individual rights and responsibilities

U.S. Constitutional Due Process Protections

At no point can the government force an individual to undergo treatment; the remedy is isolation until there is voluntary compliance with the treatment plan

U.S. Constitutional Due Process ProtectionsQuarantineTemporary Detention

the individual must meet definition of a non-adherent individual

purpose of temporary detention is to determine if individual will comply with voluntary treatment or must be isolated

must show substantial evidence that individual poses a significant danger 

through potential transmission of communicable TB or incubation of MDR-TB or XDR-TB

U.S. Constitutional Due Process ProtectionsQuarantineTemporary Detention, cont. temporary detention is necessary to prevent significant harms

to health or safety of another individual or community

all less restrictive measures have been attempted, such as counseling

 if possible confinement should be in the home

 no forced medical treatment

can not last longer than 72 hours (3 days)

 must be released if no longer has communicable TB, provides assurances will comply with voluntary case management or poses no significant risk

U.S. Constitutional Due Process Protections IsolationLong Term Detention (cont)

Standard: clear and convincing evidence of immediate and substantial danger

 Petition must contain:

sufficient information to provide notice factual evidence of non-compliance, legal grounds and

factual basis that individual is appropriate for isolation, substantial evidence of danger

assessment of other less restrictive alternatives

U.S. Constitutional Due Process Protections IsolationLong Term Detention, cont. 

Rights at hearing:

hearing within 48 hours individual right to be present, physically or electronically right to counsel medical exam by an independent physician  ability to submit evidence, call and cross examine

witnesses, submit rebuttal proofs

U.S. Constitutional Due Process Protections Isolation Long Term Detention, cont. 

 proceedings must be completed in a timely fashion and must be recorded

 court orders must be in writing and last only 180 days (6 months)or until there is voluntary compliance; need subsequent court order to extend

right to timely appeal

U.S. Constitutional Due Process Protections Religious Objections

Long Term Detention, cont. 

individuals can object to any part of this process based on interference with sincere religious objections

if approved by a court, state must show compelling interest before imposing any measures

Massachusetts

MassachusettsPre-confinement Measures

Physician shall report within 24 hours actual or suspected cases of tuberculosis

Testing

no x-ray may be required to show the absence of TB

freedom from TB may be shown by negative intradermal testing

if TB positive, a physician opinion of TB negation based on an x-ray is required

MassachusettsPre-confinement Measures

Board of Health, or 2 physicians, may certify to the dph any person who:

has active TB

is unable or unwilling to accept “proper” medical treatment; and,

is thereby a serious danger to public health

MassachusettsQuarantine: Temporary Confinement

If a person is TB positive and refuses to obtain a physician opinion based on x-ray or to submit to x-ray, the dph:

may petition the district court for hospitalization order, or

order hospitalization at a tuberculosis treatment center for a 15 day observational period

MassachusettsQuarantine: Temporary Confinement

Additional Reasons:

Non-adherence:

if a person becomes non-adherent after treatment is started

and public health is immediately threatened

The dph may order immediate hospitalization for 15 day observational period

MassachusettsQuarantine: Temporary ConfinementAdditional Reasons:

Leaving hospital against medical advice

if patient with active TB indicates the desire to leave hospital against medical advice

and allowing release would create a serious danger to public health

the patient may be detained

or the police may be contacted to transport the patient immediately to a TB treatment center for involuntary confinement

MassachusettsIsolation: Long Term Confinement At the end of a 15 day observational period, a person must be

released or the Department must file for a court order extending hospitalization

If in a non-emergency situation:

court shall appoint 2 physicians experienced in the diagnosis, care, and treatment of TB to examine the person and report to the court on his condition, willingness to accept treatment, and give their opinion on whether or not it would be a serious danger to the public health to allow the person to remain unhospitalized

the court shall give notice to the person of his right to hearing

MassachusettsIsolation: Long Term Confinement

If the person does not request a hearing, the judge may order commitment on the physician’s findings

If a hearing is requested, the court shall allow the person reasonable time to prepare his case, and he must be given notice of his right to have (court appointed if necessary) counsel, witnesses present, and be present himself either in court, or through counsel if he cannot be present because of his condition

If the judge finds the person is unable or unwilling to accept treatment, he may be ordered to a TB treatment center

The statute does not provide for a standard of proof

MassachusettsIsolation: Long Term Confinement

If the petition is filed after refusal for examination or emergency commitment 15 day observational period:

the judge shall give the person notice of his right to hearing

if no hearing is requested, the judge may order commitment on the basis of the petition

if a hearing is requested, it shall be granted in compliance with the above paragraph

MassachusettsIsolation: Long Term Confinement

if, after the hearing, the patient is unwilling to accept treatment, the court shall commit the individual to a TB treatment center

the person may file for an order of release, but if denied, must wait at least 6 months to file again

Connecticut

Connecticut Pre-confinement Measures

Physician shall report within 24 hours a person under his care who he knows, or suspects, to have TB

If the dph determines that public health is substantially and imminently endangered, a warning may be issued

to have a physician’s examination

to complete an appropriate course of medication

to follow a course of directly observed therapy

Connecticut Pre-confinement Measures

A warning must state:

the factual basis for the dph’s judgment that the person has active (or is suspected of having active) tuberculosis

education and counseling efforts have been made

the least restrictive means necessary

time period the order is to remain in effect

ConnecticutPre-confinement Measures

All warnings shall be in writing in a language the person understands, must inform the person of his right, and be hand delivered

For a person subject to a warning for physical examination, the Director may make application to the Probate Court for an enforcement order.

The person hall have the right to a court hearing within 3 business days

ConnecticutPre-confinement Measures

The hearing shall determine:

if the person has active tuberculosis, or is suspected of having active tuberculosis

if the person is unable or unwilling to be examined voluntarily

if efforts have been made to educate the person about the need for examination

whether the court order is necessary and the least restrictive alternative to protect public health

ConnecticutPre-confinement Measures

The hearing shall determine: if the person has active tuberculosis, or is suspected

of having active tuberculosis if the person is unable or unwilling to be examined

voluntarily if efforts have been made to educate the person

about the need for examination whether the court order is necessary and the least

restrictive alternative to protect public health No section shall be construed to require forcible

administration of medication can be treated per religious tenets during quarantine or

isolation

Connecticut Quarantine: Temporary Confinement

If the dph determines that public health is substantially and imminently endangered, dph may issue an emergency commitment order

the order shall extend for no more than 96 hours

dph must immediately petition the Probate Court to determine whether the commitment shall continue

Connecticut Quarantine: Temporary Confinement

An order must state:

the factual basis for the dph’s judgment that the person has active (or is suspected of having active) TB

the efforts that have been made to educate and counsel the person

that this is the least restrictive means necessary

the time period the order is to remain in effect

All orders shall be in writing in a language the person understands, must inform him of his rights, and be hand delivered

ConnecticutQuarantine: Temporary Confinement

A person may at anytime move to terminate an order, in which case a hearing shall be held within 5 business days

Any person aggrieved by an order may make an appeal to the Superior Court

Confinement may not be in prison

No section shall be construed to require forcible administration of medication

can be treated per religious tenets during quarantine or isolation

Connecticut Isolation: Long Term Confinement

Immediately upon issuing an emergency commitment order the director must petition for a judicial commitment order

a hearing must be held within 96 hours or within 3 business days

notice of hearing must be provided

Connecticut Isolation: Long Term Confinement

the burden of proof is on the Director by a standard of clear and convincing evidence to show:

the person has active tuberculosis assessment of alternative least restrictive means the person is unable or unwilling to adhere to an

appropriate prescribed course of treatment the person is infectious or presents a substantial

likelihood of being infectious the person poses a substantial and imminent

likelihood of transmitting tuberculosis to others

ConnecticutIsolation: Long Term Confinement A person may at anytime move to terminate an order, in

which case a hearing shall be held within 5 business days

The court, on its own motion, shall review any order of commitment every 6 months

Any person aggrieved by an order may take appeal to the Superior Court

No section shall be construed to require forcible administration of medication

can be treated per religious tenets during quarantine or isolation

Vermont

VermontPre-confinement A hcp must report to the dph any person who he has reason

to believe has a reportable disease within 24 hours

A physician must report a person who has consulted him who is infected with TB within one week, or if the person is indigent immediately after the examination

When dph has reasonable cause to believe a person has communicable TB, he may request the person be examined in a form dictated by the dph

If a person refuses to be examined, the dph may petition the court requiring examination

If the court finds reasonable cause, it may order the examination

VermontQuarantine: Temporary Detention A physician who knows or suspects a person has a

communicable disease dangerous to public health

shall immediately quarantine the person shall report to the dph the place where the case exists

If the physician is unable to make a specific diagnosis he may quarantine the premises temporarily until a specific diagnosis is made

The quarantine shall continue until the health officer examines the person and quarantines as provided by statute

VermontIsolation: Long-term Detention When dph determines from (court ordered) examination

that:

the person has active TB in communicable form

and the person is a health hazard to the public

…a request may be made to the court to order the person to be treated in a hospital or other suitable place for appropriate medical treatment until dph determines treatment is no longer necessary

VermontIsolation: Long-term Detention

If a person believes he is entitled to discharge and the discharge is refused by the dph, the person is entitled to a physical examination by a qualified physician of his own choice

If the physician concurs with the person, but the dph still refuses, the person may appeal to the court issuing the original order which shall make a finding as it considers proper

The order of the court may be appealed to the Supreme Court

A person may not petition for release within 6 months from the date a court order is made

VermontSpecial Provisions

A person who is not a public health hazard per the dph

may be treated by an accredited practitioner by prayer or spiritual means alone

in accordance with the tenets and practices of a well-recognized church or religious denomination