Download Isolation and Quarantine - Massachusetts Health Officers Association

Isolation and Quarantine: Issues with
Liability and Enforcement
Cheryl Sbarra
Senior Staff Attorney
Massachusetts Association of Health Boards
and
Lisa Crowner, Trainer
MDPH-OPEM
MHOA Annual Conference, October 22, 2015
Disclaimer
This information is provided for educational purposes
only and is not to be construed as legal
advice. Consult your own attorney, or your city or
town attorney for legal advice.
Back to Basics of Isolation and
Quarantine
 Used routinely to control the spread of
communicable diseases.
 Isolation: Separating people who are ill from other
people to prevent the spread of a communicable
disease.
 Quarantine: Separating and restricting the movement
of people who have been exposed to a
communicable disease and are not yet ill.
Legal Authority
 G.L. c. 111, s. 95: If a dangerous disease brakes out, the board of
health may “cause any sick or infected person to be removed to
[a] hospital.
 G.L. c. 111, s. 96: A warrant may be issued to any police officer,
“requiring him, under the direction of the board of health, to
remove any person infected . . .”
 G.L. c. 111, s. 97: Board of health is authorized by law to cause a
sick or infected person to be removed to a hospital where, in
the opinion of the board, the patient cannot properly be
isolated at home.
Legal Authority (cont’d)
DPH regulations: 105 CMR 300.000: Reportable Diseases
and Isolation and Quarantine Requirements:
 105 CMR 300.200: “The BOH and DPH are authorized to
implement and enforce [isolation and quarantine]
requirements.
 Police powers to protect health, safety & welfare.
 Specific I/Q requirements for various diseases are listed
in section 300.300.
Procedures: 105 CMR 300.210 (B) – (l)
 Educate, voluntary compliance
 Written order from BOH
 Application for Court Order
Threshold Requirements
1. Person must pose an actual threat to the public.
 Exposed to an infections agent (quarantine) or infected
with the agent (isolation).
 And be in a period of communicability.
 Otherwise, there is no compelling state interest.
2. Intervention must be reasonable and effective.
 Least restrictive means on containment.
 Mass quarantine v. voluntary confinement.
3. Preserve constitutional rights.
4. Provide safe, reasonably comfortable conditions.
 Food, shelter, medical care.
5. Reasonable compensation for loss of income.
Least Restrictive Setting
I/Q shall take place in the least restrictive setting that
complies with the requirements of 105 CMR 300.200.
WHY?
 Ancillary services and logistical support is crucial.
 Law enforcement
 Wage replacement systems – who pays?
 Delivery systems for food and medical supplies – who
pays?
 Public education and communication
 Protection for health workers
 Waste disposal
 Protective gear (PPE)
Liability Issues Surrounding
Isolation and Quarantine
If I/Q is done voluntarily, liability issues are eliminated.
 No enforcement necessary.
Potential liability issues:
 Negligent actions or omissions.
 Violation of constitutional rights.
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Civil Rights
Due Process
Right to Privacy
Right to Travel
Right to Freedom of Association
Negligent Acts or Omissions –
Mass. Tort Claims Act Chapter 258
 Public employers are liable for harm caused by the
negligent or wrongful act or omission of any public
employee who acted within the scope of his/her
employment.
 Intentional wrongdoing is not covered.
 Public employer: any city, town, county, public
health district, regional health district which exercise
direction or control over the public employee.
 Public employee: an officer or employee of a public
employer whether elected, appointed, full or part
time, temporary or permanent, compensated or
uncompensated.
Exercising Direction and Control
Mutual Aid Agreements should specify the direction and
control
 For example: an employee from Town A sent to
help Town B might “remain under the direction and
control of Town A”.
 Written agreement will be evidence to help court
determine the direction and control issue.
Paid employees doing their regular job are generally
under the direction and control of city or town.
Independent Contractor v. Public
Employee
3-pronged test
 Freedom from control
 Free from supervisory direction and control
 Work is done with minimum instruction
 Services outside the usual course of employer’s business
 Hardest prong to meet.
 Worker whose services form a regular and continuing part of
employers business
 Snow plow company cannot hire snow plow drivers as
independent contractors.
 Worker is customarily engaged in an independently
established trade or business of the same nature as that
involved in the service performed.
Constitutional Issues
To what extent can an person’s liberty be curtailed to
protect public health?
 U.S. Constitution, state constitutions, federal and
state civil rights laws provide for:
 Individual due process
 Equal protection under the law
 Privacy rights
 All of which must be balanced against the needs of
the community.
Due Process and Equal Protection
Isolation and quarantine orders trigger due process and
equal protection concern.
 Government cannot deprive persons of constitutionally
protected liberty interests without due process.
 Must balance individual rights with governmental right to
protect.
 Are the government’s actions reasonably calculated to
achieve government’s aims.
 Was the least restrictive means employed.
 Person who is highly contagious with a serious illness
may be considered dangerous and subject to
involuntary confinement if there is not less restrictive
alternative.
Due Process
Procedural Due Process
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Provide adequate notice of hearing
Provide notice of right to counsel
Provide right to appeal
Provide thorough explanation of why and how person is
being confined.
 Duration
 Location
 Method to contest order.
 Provide opportunity for person to speak with health
official to learn why these procedures are the least
restrictive means.
Equal Protection Violations
 Wong Wai v. Williamson, a board of health resolution
the mandated Chinese residents to be quarantined
for bubonic plague unless they submitted to
inoculation with a serum violated the equal
protection clause of the Constitution.
 The only justification offered for singling out Chinese
residents was a suggestion that this particular race is
more susceptible to the plague than others.
Intentional Civil Rights Violations:
Massachusetts Cases
Miller v. Town of Hull, Massachusetts, 878 F2d
523(1989) 1st Circuit Court of Appeals.
 Immediate removal of members of the Hull Housing Authority
by the Board of Selectmen because the BOS did not like their
vote of development of Section 8 housing violated the HHA
members First Amendment right to free speech, right to hold
office, right to due process.
Tortora v. Inspector of Buildings of Tewskbury, 41 Mass.
App. Ct 120 (1996),
 Threats to have residents’ permit to build on property
revoked, to have BOH at the property and to have the
residents arrested without seeking a criminal complaint
interfered with residents’ right to enjoy their property.
Case Studies
 Robert Daniels, Phoenix Arizona, July 2006
 Andrew Speaker, Atlanta, Georgia, 2007
Voluntary Compliance is the Goal
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SARS Quarantine in Toronto Spring 2003
Over 27,000 contacts of cases were quarantined
27 formal quarantine orders needed to be served.
1 formal appeal was processed.
 Later withdrawn after purpose of quarantine was more
fully explained.
 Source: Dr. Bonnie Henry, Associated Medical Officer of
Health, Toronto Public Health
Resources
Types of Resources Available
Helpful Background Documents found at:
http://www.mass.gov/eohhs/gov/departments/dph/programs/id/epidemiology/rdiq/isolatio
n-and-quarantine-requirements.html#specific
 Frequently Asked Questions about Isolation and Quarantine
 Summary of Laws and Regulations Relevant to Infectious Disease Surveillance, Reporting
and Control
Specific Professional Responsibilities or Jurisdictional Issues
 Clinical Activities Related to Infectious Disease Prevention and Control
 EMS Responsibilities When Responding to Cases of Infectious Disease (Duty to Treat)
 Community Caretaking Function (Police Powers During Public Emergencies)
 Options for Financing Hospital Isolation
 The Authority of the Massachusetts Department of Public Health to Require
Immunization as a Condition for Entry into Schools and to Require Exclusion of Infectious
or Susceptible Students Under Isolation and Quarantine Regulations
Resources continued
 William A. Hinton State Laboratory Institute to Report an
Infectious Disease Emergency 1-617-983-6800
 Guide to Surveillance, Reporting and Control
http://www.mass.gov/eohhs/gov/departments/dph/programs/i
d/epidemiology/rdiq/public-health-cdc-surveillance-andreporting.html
 Legal Documents for Use by Municipal Attorneys and Local
Boards of Health When Ordering and Enforcing Isolation
http://www.mass.gov/eohhs/gov/departments/dph/programs/i
d/epidemiology/rdiq/isolation-and-quarantinerequirements.html
Contact Information
Cheryl Sbarra, J.D.
Senior Staff Attorney
Massachusetts Association of Health Boards
[email protected]
(781)721-0183
Lisa Crowner, Trainer
MDPH-OPEM
[email protected]
(508) 984-0619