Bioterrorism and Legal Issues: Commonwealth of Massachusetts

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Bioterrorism and Legal Issues Commonwealth of
Massachusetts

• Donna E. Levin, Esq.
• General Counsel
• Massachusetts Department of Public Health

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LEGISLATIVE REVISION

• USE THE MODEL ACT AS A GUIDE
• UNDERTAKE CAREFUL REVIEW OF CURRENT LAW
• AMEND CURRENT LAW AND TAILOR IT TO ACCOMODATE
  NEW, NECESSARY PROVISIONS
• RETAIN EXISTING LAW WHERE POSSIBLE TO PROTECT
  PRECEDENT, INTERPRETATIVE CASE LAW AND HISTORICAL
  EXERCISE OF AUTHORITY

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Necessary Legislative Revision

• Antiquated Law
• Broad Authority Without Adequate Directives for
  Implementation
• Lack of Due Process
• Issues Simply Not Addressed GAPS

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Necessary Legislative Revisions

• GAPS
• Liability Protection for
• Individuals Assisting or Providing Use of
  Property
• Health Care Providers Good Samaritan Laws
• Expanded Roles for Health Care Providers
• Credentialing
• Isolation and Quarantine/Mandatory Treatment and
  Vaccination Due Process Protections

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Necessary Statutory Revisions

• GAPS
• Health Orders
• Emergency Funds
• Authority where Disease may not be involved
  Chemical Release/ Mystery Exposure
• Authority to Detain/Obtain Contact Information
• Confidentiality/Ability to Share Information as
  Necessary, including with Law Enforcement

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Who is in Charge? What Law Controls?

• Emergency Powers Working Group
• Assessment of Legal Authority of Various Agencies
  and Law Enforcement
• Finding the Gaps
• Providing Solid Legal Authority for Determining
  Who is in Charge/ What Law Controls/How Law
  Enforcement and Public Health and Other Agencies
  Coordinate
• Working with Scenarios

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Working with Law Enforcement

• Limitations on Law Enforcements Ability to
  Assist Public Health Officials in an Emergency
  Situation or Declared Public Health Emergency
• Law Enforcement Responsibilities Action is to
  Detect and Gather Evidence of Criminal Activity
  or Apprehend Criminals
• Police Officer Exercising Law Enforcement
  Activities Limited by 4th Amendment which
  Prohibits Warrantless Search and Seizure even
  during Public Health Emergency

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Limitations on Exercise of Law Enforcement
Activities

• Without court order/warrant, Police Officer
  Exercising Law Enforcement Responsibilities has
  no constitutional authority to
• Detain crime victims and witnesses
• Order victims or potential victims to be isolated
• Order persons or property to be decontaminated
• Compel a person to receive medical evaluation or
  care
• Order an evacuation of private property for
  public health or safety reasons
• Seize/Secure building or vehicle to, e.g. stop
  spread of harmful agent

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Community Caretaking Doctrine

• Police Officer Can Act if Immediate Action Is
  Needed to Prevent Serious Harm to People or
  Property without Court Order/Warrant. Four
  Conditions must be Present
• 1. Police Officer has reasonable grounds to
  believe an emergency exists that presents an
  imminent and serious threat to life and/or
  property.
• 2. Police officer must, in fact, take immediate
  action (delay only to bring appropriate emergency
  personnel and resources to the scene or protect
  the safety of the police officer).

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Community Caretaking Doctrine, cont.

• Police Officers actions must be totally divorced
  from the detection or investigation of crime, or
  acquisition of evidence. No exercise of law
  enforcement activities.
• Police Officers actions must be reasonable in
  light of the particular emergency, and no broader
  than necessary to alleviate the emergency.

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Case Law Community Caretaking Doctrine

• Mincey v. Arizona, 437 U.S. 385 (1978)
• Michigan v. Tyler, 436 U.S. 499 (1978)
• South Dakota v. Opperman, 428 U.S. 364 (1976)
• Cady v. Dombrowski, 413 U.S. 433 (1973)