And stay in!

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

Liability Issues

Part 2 of my series on legal issues surrounding public health emergencies: Liability.

Federal laws protect federal workers responding in an emergency, even temporary hires, and that’s great — but there are all kinds of other liability issues to take into account.

One that’s important to us: what about volunteers? Volunteers usually work with a local organization or a local government, not directly with the federal government, so it’s their rules that cover you. Pima County will cover registered volunteers of the county, even if they are temporarily registered in an emergency situation — but only if you are acting in a role assigned to you by the county after you register with them. States and counties have their own rules and plans, and it’s really a patchwork system.

It’s important for the government to provide good liability coverage for volunteers, because their services are likely to be needed — especially medical volunteers — but who wants to volunteer if they think they’re going to get sued? Take-home message: if you want to volunteer, make sure you find out what kind of liability coverage will be provided to you by the organization or government for which you are volunteering, because there is no federal law that automatically covers you.

Another interesting issue: use of experimental treatments. Since the PREP act was passed in 2005, the HHS secretary (btw: congrats, Ms. Sebelius!) can authorize emergency use (more about that in a later post in this series) of a not-yet-approved drug or use of approved drug for treating a potential health emergency. If this happens, broad protections are extended to everyone from the drug’s manufacturer to the nurse who gives the injection and everyone in between. They are basically immune from tort liability! (This applies to FDA-approved drugs, too, but the emergency use struck me as the most interesting application.) There’s plenty more to say, but for non-law geeks, this is probably enough for one sitting. Stay tuned for future posts on flexibility, availability of resources, and civil liberties!

xposted http://vcdc.wordpress.com

Public Health Emergency Law

Lawyer: This morning I participated in a conference call with several lawers from FEMA and HHS. They gave a broad overview of federal law as it applies to public health emergencies. It was interesting to me, but then, I’m a nerd, so I’ve tried to distill a few broad ideas from it to share.

First, there are two ways an emergency can be declared. Either the president can declare an emergency or a major disaster, or the HHS Secretary can declare a public health emergency (which he has just done.) The main reason for these declarations is to gain access to additional funds, supplies, or powers that may help control the emergency or, in this case, the potential emergency. The legal issues surrounding pandemic response can be grouped into several categories.

1. Liability. A lot of the laws surrounding disasters and emergencies deal with protecting emergency workers from being sued, altering licenscing regulations so that workers can more easily respond without sacrificing quality of care, and protecting volunteers. Federal laws generally apply only to federal employees. State laws vary widely.

2. Many of the laws are designed to give government agencies and hospitals more flexibility in emergency situations. Some temporarily relax requiremetns surrunding medicare and medicaid, and there is a program that allows for the emergency use of drugs or other treatments that have shown themselves to be helpful but have not yet been approved by the FDA.

3. Some laws make provision for the availability of resources - -not money as much as medical personnel (HHS commissioned corps, for example) and the Strategic National Stockpile, a large collection of medications, medical devices, supplies, and equipment that would help the US to respond to a public health emergency. The public health emergency declaration isused early this week gives the federal government the authority to deploy these resourcesnot just domestically, but overseas, if there is evidence that such an action would protect our own national security.

4. Perhaps the most fascinating legal questions concern safety vs. civil liberties. In particular, this applies to quarantine laws, which are actually in the process of being rewritten for a world in which people don’t generally travel by ship. The new laws, which are due to be passed mid-June (we’ll see) include a procedure for appeals to take care of the 5th ammendment concerns that often acompany quarantine and isolation ideas.

Lots of issues to explore here. Unless breaking news demands my blogging attention, I might take the next few entries to look at each of these areas in more detail. Stay tuned!

xposted http://vcdc.wordpress.com

Perspectives on Swine Flu

This article form the BBC has some really interesting perspectives from a variety of folks living in the affected area.

It’s alarming — but it’s also interesting and gives this public health emergency a much more human face.

I (lawyer) will be listening to a CDC-sponsored conference call tomorrow on Federal Public Health Emergency Law — watch for an update tomorrow with more info!