PUBLIC HEALTH EMERGENCY LEGAL PREPAREDNESS

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PUBLIC HEALTH EMERGENCY LEGAL PREPAREDNESS

• Gene W. Matthews, J.D.
• Public Health Law
• 1126 Oxford Road, Atlanta,GA 30306
• [phone]
• MatthewsPHLaw_at_aol.com

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• PUBLIC HEALTH LAW
• I. HISTORICAL CONTEXT
• II. CURRENT SITUATION
• III. FUTURE EXPECTATIONS

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• HISTORICAL CONTEXT
• 1954 Two Ships Passed in the Night!
• Salk Polio Vaccine 1954
• (END IN U.S. OF COMMUNITY-WIDE PUBLIC
• HEALTH CONTROL MEASURES300 years!)
• Brown v. Board of Education 1954
• (BEGINNING OF MODERN EVOLUTION OF PROCEDURAL
  PROTECTIONS OF INDIVIDUAL LIBERTIES AGAINST
  GOVERNMENT ACTION)

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Quarantine
A collective action for the common good
Public good
Individual liberties
Paramount to meet needs of individuals infected
and exposed
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HISTORICAL CONTEXT

• PUBLIC HEALTH ? POLICE POWER
• 10TH AMENDMENT ? RESERVED TO STATES
• Federal Functions
• International
• Interstate
• Federal Funding Assistance

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Federal, State, and Local Legal Preparedness
The Silos
Public Health
Law Enforcement
Emergency Management
Medical Services
Courts
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CURRENT SITUATIONSTATE AND LOCAL LAWS

• Intrastate control measures come under
• state laws and regulations
• State laws may vary
• Sometimes local laws may be useful

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CURRENT SITUATIONFEDERAL LAW

• Federal Government also has concurrent power to
  apprehend, detain, or conditionally release
  individuals to prevent the interstate spread or
  international importation of certain diseases.
  (42 U.S.C. 264)
• Such federally quarantinable diseases must
  first be listed in an Executive Order signed by
  the President.

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CURRENT SITUATIONFEDERAL LAW

• Executive Order 13295 of April 4,2003 added SARS
  to this list, as a prudent public health
  preparedness measure.
• Other 7 diseases Cholera, Diptheria, Infectious
  T.B., Plague, Smallpox, Yellow Fever, Viral
  Hemorrhagic Fevers (like Ebola).
• Violation ? Criminal Misdemeanor

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INTERPLAY OF FEDERAL AND STATE/LOCAL LAWS

• State local have primary responsibility for
  Quarantine and Isolation.
• Federal has authority to prevent interstate
  spread international importation of disease.
• HHS may accept state local assistance in
  enforcement of federal Q regulations
• HHS may assist state local officials in their
  control of communicable diseases.

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INTERPLAY OF FEDERAL AND STATE/LOCAL LAWS

• FEDERAL CONTROL SARS
• Due to the potential for a case of SARS to spread
  interstate, it is clear that the Federal
  quarantine authority could be applied to a single
  SARS case inside a state or local jurisdiction,
  if necessary.
• --CDC would not have to wait for an interstate
  SARS spread to actually take place before
  acting.
• --BUT any such CDC action on SARS would be
  carefully coordinated with the appropriate state
  or local officials.

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INTERPLAY OF FEDERAL AND STATE/LOCAL LAWS

• It is possible for federal, state, AND local laws
  to ALL come into play in a particular situation.
  (EXAMPLE An arriving aircraft at a large city
  airport. Hence coordination is crucial.)
• ENFORCEMENT ISSUE
• Each level of P.H. Officials must effectively
  connect with their respective Law Enforcement
  counterparts to assist as necessary in carrying
  out a mandatory public health order.

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CURRENT SITUATION INFORMATION

• DRAFT MODEL STATE EMERGENCY HEALTH POWERS ACT
  (MSEHPA)
• www.publichealthlaw.net
• (Click on Legislative Specifications for quick
  overview)
• www.ncsl.org/programs/health/modelact.pdf
• (for the recent NCSL Check List)
• Designed to assist states in their review of
• their laws, regulations, procedures

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2003 SARS Lessons

• CANADIAN EXPERIENCE WITH SARS
• --OVER 27,000 PERSONS QUARANTINED IN TORONTO
• --27 FORMAL QUARANTINE
• ORDERS NEEDED TO BE SERVED
• --1 FORMAL APPEAL
• (LATER WITHDRAWN AFTER EXPOSURE WAS
  EXPLAINED)

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2003 SARS Lessons

• PRACTICAL EXPERIENCE IN TORONTO
• DEMYSTIFIED
  QUARANTINE
• Experienced Social Cohesion in PH Emergency
• RESPONSIBILITY
  DIVISIVENESS
• COOPERATION
  PANIC
• Lesson gt When Presented With Clear
  Communication Practical Guidance, Public
  Behavior Can Be Very Responsible in a Public
  Health Emergency

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2003 SARS Lessons

• LEVELS OF QUARANTINE HAVE EVOLVED
• --USE OF MASKS, GLOVES, ETC.
• --SNOW DAY and SHELTER-IN-PLACE
• --VOLUNTARY ISOLATION / QUARANTINE
• --TELEPHONE MONITORING IN THE HOME
• --GOVT ORDERED ISOLATION / QUARANTINE
• --INVENTED CONCEPT OF WORK QUARANTINE
• --ACTIVE USE OF LAW ENFORCEMENT OFFICERS
• TO SERVE PROCESS AND MONITOR

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2003 SARS Lessons

• Public Health Must Be Prepared to Act
• BOLDLY AND SWIFTLY
• And To Treat Individuals With
• DIGNITY AND FAIRNESS.
• Dr. Julie L. Gerberding

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PRACTICAL STEPS FOR SARS LEGAL PREPAREDNESS

• 1. KNOW YOUR LEGISLATION
• 2. PLAN DUE PROCESS
• 3. DRAFT DOCUMENTS IN ADVANCE
• 4. CONTACT OTHER JURISDICTIONS
• 5. ENGAGE THE COURTS IN ADVANCE
• 6. ANTICIPATE PRACTICAL PROBLEMS
• 7. COMMUNICATION,COMMUNICATION,
• COMMUNICATION

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SARS Legal Preparedness

• PLAN FOR DUE PROCESS
• COMMON ELEMENTS OF DUE PROCESS
• --Adequate Notice (a written order).
• --A Right to Be Heard
• ---to present evidence and witnesses
• ---to confront the evidence of the agency
• --Access to Legal Counsel
• --A Final Decision that a Court Can Review.

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CURRENT SITUATION

• -BUDGET CRUNCH IN GOVERNMENTS
• -SILOS
• -ARRIVAL OF FIVE SHADOWS
• Ax W. Nile Sx SARS Mx

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II. CURRENT SITUATION TRAINING
FORENSIC EPIDEMIOLOGY COURSE

• HOW DO P.H. L.E. INVESTIGATIONS CONNECT WITH
  EACH OTHER??
• -Compare Different Investigational Approaches
• -Who is in charge? and When?
• -Chain of custody
• -Information sharing / confidentiality issues
• -Historical Teaching Examples

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II. CURRENT SITUATION TRAINING FORENSIC
EPIDEMIOLOGY COURSE

• -Enormous interestU.S. Attnys VERY interested
• -Joint DOJ Participation
• -Saturating Down to State and Local L.E. P.H.
• -Expand Horizontally to EMA, Nat. G., Agri, etc.
• -Several Funding Streams Available
• -At least 36 states currently implementing

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Federal, State, and Local Legal Preparedness
The Silos
Public Health
Law Enforcement
Emergency Management
Medical Services
Courts
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III. FUTURE EXPECTATIONS

• A RENAISSANCE IS NOW TAKING PLACE IN PUBLIC
  HEALH LAW

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III. FUTURE EXPECTATIONS

• Public View Post 9/11
• If there is an emergency, my governments need to
  have their acts together.
• - - - - - - - - - - - - - - - - - - - - - - - - -
  - - - - - - - - - - - - - - - - - - - - - - - - -
  - - - - - - - - - - - - - - - - - - - - - - - - -
  - -
• Federal State Local Governments
• PH Law Enf. EMAs Nat.Guard Agri., etc.
• NO MORE SILOS

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III. FUTURE EXPECTATIONS COMMUNITY-BASED LEGAL
PREPAREDNESS DISCUSSIONS

• Reach out through State and City Lawyers
  Associations P.H. Officers
• Has your bar association set up a legal
• preparedness working
  groupyet?
• Natural Participants Hospital Attorneys, Civil
  Liberties, Law Schools, Drug Cos., Professional
  Associations, Attny Gens., etc.

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III. FUTURE EXPECTATIONS CONNECT THE DOTS

• Health
• Officers
• Academicians
  Legislators
• Non-Profits
  Attorneys

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III. FUTURE EXPECTATIONS ADDING NEW DOTS!!!!

• Health
• AGRI. Officers LAW
  ENFORCE.
• Academicians
  Legislators
• EMAs JUDICIAL
• Non-Profits ?
  Attorneys

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21st CENTURY REVOLUTION

• Adapted from
• Germs, Norms, and Power
• Global Healths Political Revolution
• By David P. Fidler, Indiana University School of
  Law

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Westphalian Governance

• (Horizontal Governance)
• -Sovereignty
• -Non-interference with internal affairs
• -Bilateral agreements and treaty

State A
State B
State C
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Post-Westphalian Governance

• Vertical Communication
• Global access to communications technology
  

State A
State B
State C
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Post-Westphalian Governance

• WHO
• travel alerts
  surveillance Media
• Global access to communications technology
  

State A
State B
State C
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The Toronto Paradox 25,000 voluntary
quarantines 66 formal orders 1
appeal (withdrawn)DEVISIVENESS
SOCIAL
PANIC
COHESIONMedia Impact on
Q? Parallels to WTC events of 9/11? Was
the culture temporarily changed? SOCIAL
RESEARCH NEEDED ASAP!
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• CDC Public Health
• Law Program Website
• www.phppo.cdc.gov/od/phlp