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
richards@lsu.edu
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