FACT SHEET
Practical Steps for SARS Legal Preparedness
Step 1: Know
your legislation
State and
local public health officers need to be familiar with the legal requirements in
their jurisdiction regarding isolation of infectious individuals and quarantine
of exposed individuals. While most
states have laws to compel the isolation and/or quarantine of an individual,
procedures may vary widely from jurisdiction to jurisdiction. Key individuals,
such as legal counsel, judges, and policymakers, should be identified and made
part of your jurisdictions planning for SARS.
Step 2: Plan
“Due Process”
Procedural
due process is implicated when the government seeks to deprive an individual of
“liberty” interests within the meaning of the Due Process Clause of the Fifth
or Fourteenth Amendment to the U.S. Constitution. Many states, through statute or regulation,
have established very specific administrative and judicial schemes for
affording due process to a person subject to a quarantine and/or isolation order. On the other hand, some schemes in other
jurisdictions may not directly address this issue.
While due
process is a flexible concept and calls for procedural protections as the
particular situation demands, the basic elements of due process include:
adequate notice (typically through written order) of the action the agency
seeks to compel; the right to be heard (typically through the right to present
evidence and witnesses and to contest the government’s evidence and witnesses);
access to legal counsel; and a final administrative decision that is subject to
review in a court of law. These due
process protections should not impede the immediate isolation or quarantine of
an individual for valid public health reasons in an emergency situation.
Step 3:
Draft key documents in advance
State and
local public health officers should consider drafting key documents in advance
of an emergency. These template documents
can prove to be critical time savers in an emergency. Documents that
jurisdictions should consider preparing in advance of an emergency include:
draft quarantine and/or isolation orders; supporting declarations and/or
affidavits by public health and/or medical personnel; and an explanation of
your jurisdiction’s due process procedures for individuals subject to an
isolation/quarantine order.
Examples
of documents created by other jurisdictions may be found at: http://www.phppo.cdc.gov/od/phlp/
Step 4:
Contact other jurisdictions
It is
possible for federal, state, and local health authorities simultaneously to
have separate but concurrent legal quarantine power in a particular situation
(e.g., an arriving aircraft at a large city airport). Furthermore, public health officials at the federal,
state, and local level may occasionally seek the assistance of their respective
counterparts, e.g., law enforcement, to assist in the enforcement of a public
health order. State and local public
health officers should therefore be familiar with the roles and
responsibilities of other jurisdictions: vertically (local, state, federal);
horizontally (public health, law enforcement, emergency management, and health
care); and in geographical clusters (overlapping state/local neighbors).
Step 5: Engage
the Courts in advance
Some
jurisdictions may rely on older public health statutes that have not been
amended in over half a century, while other jurisdictions may have recently
revised their legal authorities in order to more effectively respond to bioterrorism
or other public health emergencies.
Judges who may be called upon to review a public health order may not be
familiar with the State or local health authority’s broad public health
powers. During the SARS outbreak in
Step 6:
Anticipate practical problems
State and
local public health officers need to be prepared for the practical problems
that may arise in affording adequate due process protections to individuals
subject to an isolation and/or quarantine order. Such problems, for example, may include how
to arrange for the appearance and representation of persons under quarantine
(e.g., through video conference or other remote means); how to serve an
isolation/quarantine order on an individual (likely through law enforcement)
and other procedures to advise such individuals of their legal rights; and
isolation arrangements for transients or homeless populations.
Step 7:
Communication … Communication … Communication
Communication
planning is vital not only for an effective public health response, but also
for an effective legal response to a public health emergency. Public health agency counsel should be aware
of media training available to other public health officers. During the SARS and Monkeypox outbreaks, CDC,
through the Public Health Law Program, also established telephone conferences
for public health legal counsel to share experiences and engage in other
peer-to-peer consultations. Efforts are
now underway to develop materials to assist State and local public health
agencies in conducting further outreach on emergency public health issues to
the legal community through local bar associations.