THE EVOLVING ROLE OF PUBLIC HEALTH LAW

IN CONTAININGINFECTIOUS DISEASE

Anne Murphy, J.D.

Chief Legal Counsel

Illinois Department of Public Health

"The findings and conclusions in this presentation have not been formally disseminated by the Centers for Disease Control and Prevention and should not be construed to represent any agency determination or policy.”

THE RECENT EMERGENCE OF INFECTIOUS DISEASES HAS INCREASED THE DEMAND FOR EFFECTIVE LEGAL TOOLS

Bioterrorism preparedness Zoonotic-borne diseases Global spread of highly contagious

diseases New diseases or disease strains

RESULTING RENAISSANCE IN U.S. PUBLIC HEALTH LAW: REASSESSMENT OF TRADITIONAL PUBLIC HEALTH LEGAL AUTHORITIES

Isolation and quarantine Property takings Reporting of, access to medical information Enforced treatment

RESULTING RENAISSANCE IN U.S. PUBLIC HEALTH LAW: IDENTIFICATION OF EMERGENT LEGAL ISSUES

Medical privacy, especially as to electronic and syndromic capabilities

Animal control and containment Application of public health powers in a

bioterrorist event

Interface of federal/state /local powers (geographic jurisdictions)

Interface of public health, law enforcement, emergency response, agricultural and environmental regulatory powers (substantive jurisdictions)

Assessment of police powers under current civil liberties standards

RESULTING RENAISSANCE IN U.S. PUBLIC HEALTH LAW: NEED FOR PROACTIVE, WELL INFORMED LEGAL COUNSEL FOR PUBLIC HEALTH AUTHORITIES

Assess extent of current legal authority Identify gaps in law and work to develop

new legal authorities Provide counsel to clients in application of

authorities Interface with counsel from other

jurisdictions

PUBLIC HEALTH LAW INFRASTRUCTURE NEEDED

CDC has taken leadership role at national levelAnnual Public Health Law ConferenceFacilitation of Public Health Law

AssociationForensic epidemiology initiative

Sponsorship of Model State Public Health Emergency Powers Act, academic analyses

Public Health Law Program (website, resources, educational programs, daily public health law news)

In many states and local jurisdictions, comparable efforts are underway

Opportunity to further advance public health law, through continued infrastructure development International public health law Legal product and services development

For lawyers and for scientistsAssure scientific basis for legal powers

and conclusionsBreak down barriers to achieve

interdisciplinary approaches

FOUR COMMON THEMES IN EMERGING PUBLIC HEALTH CHALLENGES1.1. Traditional public health laws do not always fit Traditional public health laws do not always fit

new problemsnew problems

2.2. Must continuously balance individual rights Must continuously balance individual rights with effective protection of public’s healthwith effective protection of public’s health

3.3. Legal approaches must be interdisciplinary and Legal approaches must be interdisciplinary and coordinated coordinated

4.4. Must be proactive planning for interdisciplinary Must be proactive planning for interdisciplinary legal preparedness legal preparedness

1. Traditional public health laws do not always fit

Existing laws Vague Silent regarding bioterrorism,

mass outbreaks, zoonotic illness Outdated under current civil liberties

principles New laws and regulations often needed

2. Must continuously balance individual rights with effective protection of public’s health

Informed consent Medical privacy and confidentiality Restrictions of movement, invasions of person

3. Imperative that legal approaches be interdisciplinary and coordinated

Substantive areas Legal Legislative Judiciary Academic Law Enforcement Science/medicine

Emergency managementAgricultureFood, drugs and dairyHealth care facilities and professionals

Advocates for civil rights

JurisdictionsInternationalFederalStateLocal

Consider as examplesMonkeypoxSARSBioterrorism

4. Must be proactive planning for interdisciplinary legal preparedness

Bioterrorism in Illinois TOPOFF Legal Team Public Health Emergency Powers

Legal Team; HB 5164 Forensic epidemiology Isolation and quarantine working

groups

SPECIFIC AREAS OF PUBLIC HEALTH LAW NEEDING CONTINUED FOCUS

Jurisdiction – who’s in charge Isolation and quarantine Reporting/release of medical information Licensure/certification issues Emergency management issues Informed consent Injury compensation/liability Extraordinary powers

Jurisdiction – who’s in charge?

Isolation and quarantineNotice Initial detention, post deprivation rightsRight to counselClear and convincing evidence, least

restrictive means; must be tied to particular circumstances, scientific basis

Application to groups

Reporting/release of medical informationRelease of information to

media/publicProvider reporting to public healthPublic health/law enforcement

exchange of informationHIPAA issues, confusion

Licensure/certification issuesScope of practice limits for

professionalsOut of state professionalsUse of unlicensed personnelEmergency hospital privileges

Emergency management issuesDisaster declarationSuspension of lawsMutual aidLiability issues

Informed consentEmergencies (i.e., SNS distribution)Vaccinations, experimental treatment

Injury compensation/liability

Extraordinary powersClosure of facilities, control/destruction

of propertyDisposition of human remainsMandated testing, examination,

treatment, monitoring

A CHALLENGE TO THE INFECTIOUS DISEASE SCIENTIFIC COMMUNITY

Public health law is a tool for your use: You have ownership in this

Satisfaction of public health legal standards requires a sound clinical/scientific basis: You have ownership in this

For clinicians affiliated with providers and payers, For clinicians affiliated with providers and payers, discuss with counsel disaster privileges, privacy discuss with counsel disaster privileges, privacy issues, informed consent, liability issuesissues, informed consent, liability issues

For clinicians affiliated with public health, discuss For clinicians affiliated with public health, discuss with counsel isolation and quarantine protocols, with counsel isolation and quarantine protocols, plans for EIDs, disaster plans, confidentiality plans for EIDs, disaster plans, confidentiality issuesissues

The scientific community and the public health legal community share a responsibility to work together, and with others, in the development and application of public health law