American Osteopathic College of Occupational and Preventive MedicineOMED 2012, San Diego, Tuesday, October 9, 2012
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Public Health Law and
Disaster Medical Response
Public Health Law and
Disaster Medical Response
David B. Canton
D.O., M.P.H., J.D.
CAPT, USPHS (Ret)
V.P.M.A.
Emanuel Medical Center
DisclaimerDisclaimer
This presentation is for educational purposesonly.
Information presented is not given on behalf ofany government agency
Anyone with specific questions should solicitthe opinion of their personal attorney
What is Public Health?What is Public Health?
“What we, as a society, do collectively to assure theconditions for people to be healthy.” IOM, 1988
What is Public Health Law?What is Public Health Law?
The discipline by which the state or other actors uselaw to change the health of a population, including
The study of the powers and duties of the state orother actors to assure the health of a population,
The limitations on the power of the state toconstrain the autonomy, privacy, liberty,proprietary, or other legally protected interests ofindividuals in order to assure the health of apopulation, and
The limitations on the duties of the state toassure the health of a population
Eight Types of U.S. Legal AuthorityEight Types of U.S. Legal Authority
U.S. Constitution
Treaties • Federal statutes
Federal regulations
State constitutions
State statutes
State regulations
Local authority
The common law
Higher
Lower
Foundation of U.S. LawFoundation of U.S. Law
U.S. Constitution
Source of Law
Common Law
Acts of Congress
Judicial Decree
Regulations?
American Osteopathic College of Occupational and Preventive MedicineOMED 2012, San Diego, Tuesday, October 9, 2012
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Judges Make Law, TooJudges Make Law, Too
Judge decides caseand interprets what thelegislature meant by the
statute
Legislature acts;president/governor approves
A party is aggrievedby the statute
Party files suit incourt
Other judges are bound to followinterpretation (stare decisis)
CoreConceptsCoreConcepts
The U.S. ConstitutionThe U.S. Constitution
Drafted 1787
Took effect 1788
“Supreme law of the land”
Limited powers
The doctrine of enumerated powers
State Rights vs.Federal Gov
State Rights vs.Federal Gov
U.S. Constitution
Article 1 Section 8,9,10
Congress may: collect taxes and pay debts; provide for defenseand general welfare; borrow money; regulate commerce;establish rules of naturalization and bankruptcies; coin money;punish counterfeiting; establish post officeand roads; promotescience and art; constitute tribunals inferior to the supremencourt; define and punish piracies and felonies of the high seasand nations; declare war; raise and support armies and navy;regulate armed forces; provide for and calling for militia toexcecute laws of teh Union; support military; exclusive legislationof district and make laws to support above.
State Rights vs.Federal Gov (cont)
State Rights vs.Federal Gov (cont)
Powers forbidden to Congress: Writ of habeasCorpus shall not be suspended; no ex postfacto shall be passed; no preference given toports of one state over another state; nomoney drawn from the Treasury but as resultof law and account shall be made; shall notgrant title of nobility.
State Rights vs.Federal Gov (cont)
State Rights vs.Federal Gov (cont)
Forbidden state powers; enter into treaties;coin money; emit bills of credit; make anythingbut gold or silver coin as tender of payment;pass ex post facto laws or law impairing theobligation of contracts; grant title of nobility; taximports; keep troops without consent ofCongress; enter into agreement with anotherstate.
American Osteopathic College of Occupational and Preventive MedicineOMED 2012, San Diego, Tuesday, October 9, 2012
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The Tenth Amendment (1791)The Tenth Amendment (1791)
“The powers not delegated to the United States by theConstitution, nor prohibited by it to the States, arereserved to the States respectively, or to the people.”
The Police PowerThe Police Power
Natural inherent authority of the sovereign to regulateprivate interests for the public good
Retained by the States, not ceded to the federalgovernment
Includes wide powers to:
Restrict a person’s personal liberty
Restrict a person’s ability to work
Seize property without compensation
Stafford ActPublic Law 106-390
Stafford ActPublic Law 106-390
Provides for
Planning
Preparedness
Grants
Response
Economy ActEconomy Act
31 U.S.C. Section 1535
Must be appropriation available
Must be in best interest of the government
Payment shall be prompt
Federal ResponderFederal Responder
NDMS
PHS (41 U.S.C. Section 217b)
HHS ( 41 U.S.C. Section 217b)
Volunteer ProtectionAct of 1997
Volunteer ProtectionAct of 1997
Subject to state acceptance and conditions
Liability protection for the individual if:
Working within scope
Proper license and authorization
Harm not willful, criminal or gross negligence
Harm not caused by vehicle
American Osteopathic College of Occupational and Preventive MedicineOMED 2012, San Diego, Tuesday, October 9, 2012
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Good Samaritan LawGood Samaritan Law
Happen upon a person in need
Cannot go looking for people needingassistance
Still held to standard of care for person ofsimilar skill and or training
State dependent
Some states have added volunteer diasterresponders
Re-employmentRe-employment
Uniform Services Employment and Re-employment righst Act (USERRA)
State Laws
New Mexico Volunteer Responder JobProtection Act
Examples of the States’ Police PowerExamples of the States’ Police Power
Require a child to be vaccinated as a condition ofattending school
Involuntarily detain a person who has a communicabledisease
Search, seize, and destroy property in order to controldisease spread, sometimes without compensation
Throw up a cordon sanitaire around a city to preventdisease spread
RegulationsRegulations
“Laws” created by the executive branch ofgovernment
Must be based on delegation of authority fromlegislature
Have the full force of law
Must be created through a statutory process
Must not violate due process (notice, hearing)
Violations and punishments are usually civil and canbe appealed to judges
Example of a Regulatory Delegation:42 U.S.C. § 264 (1944)
Example of a Regulatory Delegation:42 U.S.C. § 264 (1944)
“The Surgeon General, with the approval of theAdministrator [Secretary], is authorized to make andenforce such regulations as in his judgment arenecessary to prevent the introduction, transmission,or spread of communicable diseases from foreigncountries into the States or possessions, or from oneState or possession into any other State orpossession.”
Constitutional Rights of IndividualsConstitutional Rights of Individuals
Amendments 1-10 (called the Bill of Rights) ratified in1791
Others rights added 1795-
Most relevant to public health:
1st (1791) Freedom of religion and speech
4th (1791) Unreasonable search and seizure
5th (1791) Due process (federal); takings
14th (1868) Due process; equal protection
American Osteopathic College of Occupational and Preventive MedicineOMED 2012, San Diego, Tuesday, October 9, 2012
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The 1st Amendment:Freedom of Religion and Speech
The 1st Amendment:Freedom of Religion and Speech
“Congress shall make no law respecting anestablishment of religion, or prohibiting the freeexercise thereof; or abridging the freedom of speech,or of the press …”
The 4th Amendment:Unreasonable Search and Seizure
The 4th Amendment:Unreasonable Search and Seizure
“The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shall not beviolated ….”
4th Amendment Impact onPublic Health Action
4th Amendment Impact onPublic Health Action
Public Health Inspections
Governed by the 4th Am.
Unreasonable presumptively if conducted without awarrant
Medical Testing
Collection and analysis of biological specimens from aperson is a “search”
To determine if “reasonable,” courts balance publichealth need against privacy
In general, courts accept government’s assertions ofneed
The 14th Amendment:Due Process of Law
The 14th Amendment:Due Process of Law
“… nor shall any state deprive any person of life,liberty, or property, without due process of law; nordeny to any person within its jurisdiction the equalprotection of the laws.”
Due Process of LawDue Process of Law
Procedural due process
What process is due? (notice, opportunity to beheard, counsel, right to call witnesses, right toreview by a judge)
Substantive due process - protection againstinterference with “liberty”
Example: The right to privacy
JACOBSON v.MASSACHUSETTS
SUPREME COURTOF THE UNITED STATES
197 U.S. 11;25 S. Ct. 358;49 L. Ed. 643;1905 U.S. LEXIS 1232
Argued December 6, 1904February 20, 1905
JACOBSON v.MASSACHUSETTS
SUPREME COURTOF THE UNITED STATES
197 U.S. 11;25 S. Ct. 358;49 L. Ed. 643;1905 U.S. LEXIS 1232
Argued December 6, 1904February 20, 1905
American Osteopathic College of Occupational and Preventive MedicineOMED 2012, San Diego, Tuesday, October 9, 2012
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Jacobson: Key HoldingsJacobson: Key Holdings
Police power upheld
No absolute right to be wholly free from restraint. Restraints necessary for thecommon good
Deference for legislature
Court’s approval of public health intervention depended on:
Public health necessity
Reasonable means
Proportionality
Harm avoidance
The Legal Basis of Public Health Action inEmergenciesThe Legal Basis of Public Health Action inEmergencies
Sources of Authority forEmergency Control of Disease
Sources of Authority forEmergency Control of Disease
Federal
Commerce Clause
“The Congress shall have power … To regulate Commerce with foreign Nations,and among the several States, and with the Indian Tribes;” Art 1, Sec 8.
Tax and spend power
Federal statutes
State
Police powers
State statutes
Office of GeneralCouncil
Office of GeneralCouncil
Legal “advisor” for government agencies
Defend government agencies and employees
Interpret law on behalf of teh agency
Their opinion becomes the legal policy of theagency
BioterrorismBioterrorism
• Most legal authorities needed already exist
• Five instructive events
– Anthrax – need for joint training and cooperation between public health andlaw enforcement
– West Nile Fever – law around chemical abatement
– Smallpox vaccine – liability and compensation
– SARS – quarantine and isolation
– Monkeypox – integration of federal and state agency efforts
Bioterrorism Legal IssuesBioterrorism Legal Issues
• Collection of records and data: disease reporting, surveillance, andprivacy
• Control of property
• Management of persons: quarantine, detention, and isolation
• Legal immunity
• Access to communications
American Osteopathic College of Occupational and Preventive MedicineOMED 2012, San Diego, Tuesday, October 9, 2012
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Example of a State StatuteExample of a State Statute
“California Government Code Section 101040. The county healthofficer may take any preventive measure that may be necessary toprotect and preserve the public health from any public health hazardduring any ‘state of war emergency,’ ‘state of emergency,’ or ‘localemergency,’ as defined by Section 8558 of the Government Code,within his or her jurisdiction.”
Public Health and LawEnforcement Goals Compared
Public Health and LawEnforcement Goals Compared
Law Enforcement:
Stop further crimes
Protect health andsafety of public
Apprehend andconvict criminals
Public Health:
• Stop further cases ofdisease andoutbreaks
• Protect health andsafety of public
• Build science basefor future prevention
Ten Great Public Health Achievements,United States, 1900-1999
Ten Great Public Health Achievements,United States, 1900-1999
Vaccination
Motor-vehicle safety
Safer workplaces
Control of infectious diseases
Decline in deaths from coronary heart disease and stroke
Safer and healthier foods
Healthier mothers and babies
Family planning
Fluoridation of drinking water
Recognition of tobacco use as a health hazard
American Osteopathic College of Occupational and Preventive MedicineOMED 2012, San Diego, Tuesday, October 9, 2012
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American Osteopathic College of Occupational and Preventive MedicineOMED 2012, San Diego, Tuesday, October 9, 2012
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SAFER • HEALTHIER • PEOPLE
Historic Roots of Quarantine
• Biblical accounts of quarantine practices forpersons with leprosy
• Epidemic plague in 14th C. Europe hadprofound impact on commerce
–1485: Venice established 40-day (Lat.Quadragina) harbor detention, i.e., quarantine
–1626: First Quarantine Station, Marseille
–The Quarantine Flag: Became the “Q” flag in theinternational maritime code of flag signals
SAFER • HEALTHIER • PEOPLE
Definitions: Quarantine
• Separation and restriction of movement of
well persons presumed to have been exposedto contagion
–often at home or residential facility
–may be voluntary or mandatory
SAFER • HEALTHIER • PEOPLE
Definitions: Isolation
• Separation and restricted movement of illpersons with contagious disease
–Often in a hospital setting
–Primarily individual level, may be applied topopulations
–Often voluntary, but may be mandatory
–Fundamental, commonly used public healthpractice
SAFER • HEALTHIER • PEOPLE
Quarantine:Statutory Authority
• Intrastate quarantine power
–Local or state public health officials haveauthority for quarantine when an infectiousdisease outbreak confined within state border
–Considered a police power-- an inherentauthority to protect health and welfare ofcitizens
–Reserved to states (10th Amendment)
American Osteopathic College of Occupational and Preventive MedicineOMED 2012, San Diego, Tuesday, October 9, 2012
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SAFER • HEALTHIER • PEOPLE
Quarantine:Statutory Authority
• Foreign and interstate quarantine
–Considered essential in regulation of foreignand interstate commerce
–Federal authority (Commerce clause)
–Executive decision by the President of U.S.
–CDC manages federal quarantine, withpossible utilization of assets from otheragencies
–CDC may intervene in intrastate incidents ifrequested by state or if local control effortsconsidered inadequate
SAFER • HEALTHIER • PEOPLE
Foreign Quarantine Regulations:
Title 42 CFR Part 71
• Reporting of “ill persons” defined by
–Fever (≥100º F or 38º C) persisting ≥48 hours and
–Rash or glandular swelling, or jaundice or
–Diarrhea (≥3 stools in 24 hours or greater than normal amount)
• Medical surveillance of arriving persons
• Sanitary measures over inbound carriers, cargo
• Quarantine of arriving persons (with diseases listedin the Executive Order signed by the President)
SAFER • HEALTHIER • PEOPLE
Interstate Quarantine Regulations: 42CFR (Code of Federal Regulations)
Part 70
• Report of communicable disease to localhealth authority
• Provision for Federal travel permit requirement
–Written permit for travel from one state toanother
• Intrastate federal intervention only if localcontrol inadequate
SAFER • HEALTHIER • PEOPLE
Executive Order 13295: Revised List Of QuarantinableCommunicable Diseases
(a)Cholera; Diphtheria; infectious Tuberculosis; Plague;Smallpox; Yellow Fever; and Viral HemorrhagicFevers(Lassa, Marburg, Ebola, Crimean-Congo, SouthAmerican, and others not yet isolated or named)
(b) Severe Acute Respiratory Syndrome (SARS)
(c) Influenza caused by novel or reemergent influenzaviruses that are causing, or have the potential tocause, a pandemic
President George W. BushApril 1, 2005
SAFER • HEALTHIER • PEOPLE
Quarantinein the United States
• Quarantine in Colonial America (17th C.) handledlocally by each colony
–1647--Massachusetts Bay Colony
–1798--Yellow Fever Outbreak in Philadelphia
•Governor declared cordon sanitaire
• 1878: National Quarantine Act
–Shift of quarantine powers from state to federalgovernment
• 1944: Public Health Service Act: Basis for currentfederal quarantine powers
QuestionsComments
David Canton, DO, MPH, [email protected]