The Limits of Law in Public Health Emergencies: Building Resilient Communities

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The Limits of Law in Public Health
EmergenciesBuilding Resilient Communities

• Edward P. Richards, JD MPHProgram in Law,
  Science and Public HealthLSU School of Law
  http//biotech.law.lsu.edu

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Learning Objectives

• Why legal authority in emergencies is very broad
• Why legal authority is usually the wrong question
• Moving to all-hazards planning
• Moving beyond all-hazards planning to resilient
  communities
• Close with a Q A session

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So, Can I Shoot Them?

• Think how it is going to look a year latter in
  court.

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Why are You Worried about Legal Authority?

• You will be stopped from acting by a judge
• You will be sued later for acting
• You will be prosecuted later for acting
• You are worried that your department will not be
  paid for the personnel and materiel used.
• You are worried about the political fallout from
  what you do.

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The Source of Legal Authority for State Agencies

• The Constitutional Reservation of Police Powers
  to the State
• What are the police powers?
• The allocation of the police powers by the state
  constitution
• The delegation of the police powers by the
  legislature, if required by the state constitution

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Do You Need a Detailed Law?

• The courts have upheld public health emergency
  actions based on broad delegations
• "Do what you need to do to protect us"
• This deference is greatest in emergencies

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The Important Questions

• Is there really is an emergency?
• Are you trying to save lives and/or prevent
  injuries?
• Do you know what you need to do and how to do it,
  and do you have the necessary materiel?
• Are you trying to use emergency public health
  power for law enforcement?

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Why the Push for Lots of Emergency Powers Laws?

• Confusion over legal authority by lawyers who are
  frightened to say yes
• Confusion between lack of authority and screwing
  up
• Failure to understand that detailed laws pose new
  risk
• Real concerns on who is going to pay for stuff

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Why do Legislators Pass Emergency Powers Laws?

• Legislature as sausage factory
• Law is cheap
• Passing the buck
• Please sir, can I have some personnel and rate
  funding with that responsibility?

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The Worst Case

• Lots of very specific laws and duties, and not
  enough resources to do the job.

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Moving to All Hazards Planning
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What We Do WellTraditional Emergency Response

• Geographically limited
• Crime scenes
• Tornados
• Derailed trains
• Temporarily limited
• No one is staffed to run at 100 mobilization
• Most people have multiple duties
• Relatively frequent events

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What We Do Not Do Well

• Wide geographic region
• Long time frame
• Significant displaced population
• Maintain readiness for long periods without
  events
• Training and materiel costs
• Loss of public attention
• The pandemic flu problem

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All Hazards Planning

• Generalize plans so that planning for the federal
  crisis de jure provides real benefits
• Many of you have started doing this
• Examples
• Use pandemic flu planning to address the yearly
  flu pandemic
• Use terrorist attack planning to educate the
  community about risks such as chemical plant
  accidents

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Why All Hazards?

• Difficult to maintain readiness for a low
  probability event
• Plan must provide short term benefits to be
  supported in the long term
• Impossible to change behavior patterns on short
  notice
• Plan must incorporate new behaviors and attitudes
  into everyday situations

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Example All Hazards Planning for Pandemic Flu

• Institute vaccination programs for all
  recommended adult immunizations
• Address policies that encourage employees to work
  sick
• Develop and implement workplace surveillance for
  infectious disease risks
• Include families in these plans because officers
  cannot work effectively if their families are at
  risk

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Management Oversight Advantages

• Provides measurable outcomes, which disaster only
  planning does not
• Provides an economic and workplace benefits which
  will make the program easier to continue
• Requires policies to be worked out with unions
  and other stakeholders
• Assures buy in
• Identifies problems

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The Next Step Resilient Communities

• Bring All Hazards Planning for Wide Scale Public
  Health Emergencies to the Community

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What is a Wide Scale Public Health Emergency?

• Long term
• Days to longer
• Depletes manpower and resources
• The affected population requires support
• Widespread
• Affects a region or significant urban area
• Affects everyone, including the police and public
  health personnel
• Significant Risk

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Examples

• Epidemic
• Bird flu
• Wide area hazmat incident with long term risks
• Anthrax
• Dirty bomb
• Natural disaster
• Hurricanes, very severe winter storms
• Earthquakes

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Limited Response Options in Public Health
Emergencies

• You cannot shoot people who are just trying to
  take care of their families
• You cannot arrest large numbers of persons to
  restore order
• You cannot occupy significant territory
• You cannot begin to supply basic necessities to
  everyone who is affected

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Your People are also Victims

• Widespread public health and environmental crises
  affect law enforcement personnel
• Most personnel will look to their families first
• Law enforcement families cannot be protected
  outside of the context of their communities

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Day to Day Life Goes On

• No federal plan acknowledges that there are
  criminals and the homeless
• Biggest joke - Pandemic flu plan says they will
  close the borders
• Too many plans can only be staffed by assuming
  that no other law enforcement or first response
  activities will take place
• Only works for short periods

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Why 9/11 is the Wrong Model

• Deaths, but not injuries - limited impact on
  health care
• Relatively small percentage of the population
  displaced for a long period of time
• Relatively little infrastructure destroyed
• No mitigation strategies

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Why Katrina is a Better Model

• Widespread
• Long-term
• Foreseeable
• The risks could have been mitigated
• The response needs outstripped all available
  resources

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What Do Communities Need in Public Health
Emergencies

• Food, water
• Environmental management such as heat
• Transportation and shelter if an evacuation
• Primary health care
• Family support - where are the kids?
• Support of local institutions, not volunteer
  imperialism.

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Who Will Provide for the Public?

• Federal model
• Local first responders
• Supported by the military and federal support
• State Models
• Public health, supported by law enforcement
• Reality
• In most areas the police are the organizations
  with the most staff and resources

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Who Will Fund This in the Long Term?

• The existing money is coming from other essential
  services that cannot be postponed forever
• Priorities will shift as fears of disaster abate
• Many health departments are losing net money
• Bottom-line No one is funding real public support

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Objectives of Resilient Communities

• Reduce the need for support from public services
• Reduce suffering and death
• Reduce the risk of public disorder
• Most important
• Build trust and credibility so the community will
  cooperate with needed mitigation measures

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Building Blocks for Resilient Communities
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Honest Risk Communications

• Be realistic about the risk
• Bird flu v. yearly flu
• Hurricane v. terrorist attack
• Do not bet against gravity
• Do not suppress market risk signals
• Just say No to Potemkin planning
• Big issue in public health
• Hurricane Pam
• Being a team player puts the public at risk

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Realistic Preventive Strategies

• Must fit in with real household management
• Examples
• Gasoline
• What to take in evacuations
• How to keep food and water on hand
• How to treat water and what is safe to eat when
  the refrigerator goes off
• When to go back and what to do when you get there

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Start with Your Own People

• Get the families of your own people involved
• Builds support - they become part of the solution
• Direct benefits to the department
• Encourage them to involve their neighbors
• Stabilizes the neighborhood, making their own
  situation more secure
• Do not be the only person on your block with water

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Working with Other Organizations

• Find out if your local public health plans are
  really staffed and supported
• Find out the plans of the local hospitals and
  other health care providers
• Coordinate with retailers
• Work with churches and other private
  organizations
• Walmart and Home Depot can move goods more
  effectively than Northcom

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Reinforcing the Message when Disasters are out of
Fashion

• Priorities are going to shift
• FEMA has already punted on realistic building
  standards in New Orleans and the Gulf Coast
• No politician will keep supporting prevent
  measures once the public gets interested in other
  things
• We have a lot of social problems we have been
  ignoring
• The problems will still be there

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Political Benefits

• Most communities do not trust public health (some
  do not trust the police)
• Anti-vaccination forces
• Equating trans-fat with the plague
• Incompetent political appointees in critical
  positions
• Law enforcement will bear the risk of failed
  public health response

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