public health law and disdisclaimerclaimer disaster medical … · 2012-10-06 · court other...

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?


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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)


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.



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.


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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


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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


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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


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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


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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


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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


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


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


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)


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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


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)


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


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


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]

public health law and disdisclaimerclaimer disaster medical … · 2012-10-06 · court other...

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