Quarantines and civil liberties: specter from the past revives

by • July 1, 2007 • UncategorizedComments Off on Quarantines and civil liberties: specter from the past revives1597

© The Medical-Legal News, 2007

By Dr. Rosemary E. McGeady, Esq.

The recent case of an Atlanta attorney with multiple drug-resistant tuberculosis who engaged in international travel has put the question of quarantines back into the limelight.

Tuberculosis was the scourge of my parents’ generation. TB sanitariums dotted the landscape, and institutionalization for periods of years was not uncommon. In fact, surgeries that were dangerous and even deforming were commonly performed in those days, including intentional pneumothorax of the affected lung, crushing of the phrenic nerve to paralyze of the diaphragm, and even crushing the ribcage or inserting Lucite balls into the chest to keep the lungs from re-expanding. All of this seems horrific now in the days of anti-tuberculosis therapy. But remember this disease, in its time, was more infectious than HIV and had an infection/kill ratio of 66 percent — equivalent to anthrax today.

The emergence of extremely drug resistant tuberculosis (XDR-TB) has brought this specter from the 1930s into our modern lives. XDR-TB is defined as resistant to at least three out of six antituberculosis drugs available today. One third of those affected with XDR-TB will die of the disease.

The emergence of XDR-TB and of bioterrorism has brought into focus the need to enforce isolation of infected individuals, and to quarantine those exposed, to protect the health and safety of our society as a whole.

In nonemergency situations, the “police power” is the power inherent in the government to restrict individual liberties for the sake of the health, morals and welfare of the public. The concept of police power has important constitutional overtones. The 19th century Supreme Court held that the federal government is a government of certain delegated powers. Any powers not specifically delegated to the federal government were retained by the states. The police power to act to protect the welfare of its citizens is one of these regulatory powers held by the states. Therefore, a state has the right to make laws prohibiting the distribution of soiled food or the proper handling of medical waste.

In the natural disaster involving the potential for mass casualties, however, the government’s powers are greatly expanded. In a public health emergency, authorities can isolate those infected with the disease, quarantine those exposed, encourage vaccination and treatment and isolate or quarantine those who refuse to be treated.

Four constitutional criteria are considered in exercising these emergency powers of the state:

• A compelling state interest in confinement must exist;

• The intervention must be a “well targeted” intervention;

• The least restrictive alternative must be chosen; and

• Procedural Due Process is required — generally notice and a hearing.

The CDC is empowered under Section 362 of the Public Health Act to detain, medically examine or conditionally release persons suspected of carrying a communicable disease. The CDC’s quarantine authority applies to cholera, diphtheria, infectious TB, yellow fever, the viral hemorrhagic fevers and SARS. Generally the CDC relies on the state and local authorities for isolation and quarantine. The federal authority is only invoked if an individual presents a threat to the public health and refuses to cooperate voluntarily. •

Rosemary E. McGeady, Esq., MD, FACC, FCLM, practiced cardiology for 20 years. She established a consultation firm known as Med Law Consulting and now practices law full time at Levinson Axelrod in Edison, N.J., concentrating on personal injury and professional malpractice;mcgeady@njlawyers.com.

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