Lawyer: This is my fourth and final post about legal issues surrounding public health emergencies. When can we isolate or quarantine people? How can we do it? What about can vs. must? This one is a real doozy — if we could count on people to do the socially responsible thing, we wouldn’t have to worry about this. But all kinds of reasons — from employers who won’t give paid leave or even guarantee you can keep your job, to lack of education about disease, to a general lack of community spirit, many people won’t voluntarily stay home or in a hospital if they are sick or have been exposed. Here are a few thoughts about the who/when/where/why of quarantine and isolation.
1. It really can prevent the spread of disease. In a real pandemic situation, if you keep the sick people away from everyone else (isolation) and those who have been exposed separate until an incubation period has passed (quarantine), the germs can’t get to the rest of the population anywhere near as fast.
2. We as a nation place strong value on individual liberty and have a real reluctance to confine people if we can help it at all. (Unlike, say, China.) And this is one of the great things about our country. But does this great value of ours override the government’s responsibility to keep its citizens safe? I’d say it does, until the danger is really imminent. (see China: overzealous.)
3. It’s not just in what you do — it’s in how you do it. New rules that are being hashed out and introduced require a mandated isolation to meet two tests: the isolation itself must be fair and warranted, and the means of conducting it must also be. There is a built-in due process mechanism that entitles an individual to an automatic medical review after a short period of isolation, and if the individual disagrees with the decision, he/she is entitled to make an appeal on medical grounds, and is entitled to a medical representative (sort of like a lawyer for them, except it’s a doctor.) If they go through this and still disagree and exhaust all the administrative channels, then they are entitled to a habeus hearing. Where they get an actual lawyer.
4. All these hearings and such introduce interesting questions — can an infected person appear in court? Can court personnel be excused if they aren’t comfortable? This has come up in the past in the case of TB, but it’s simpler there — often much more isolated, etc. Alternatives include telephonic hearings, which have been allowed in some contexts in the past. I’m starting to envision hearings via Skype or iChat. The times, they are a-changing.
Lots of sticky issues here. It’s the old safety vs. security debate that we are so fond of, in contexts ranging from forced searches at the airport to, well, pandemic preparedness. Tough stuff!
xposted Ready or Not