Nov. 19, 2014 – More than 5,100 people and counting have died of the Ebola Virus Disease in West Africa this year alone, according to the U.S. Centers for Disease Control and Prevention (CDC). As of last week, two Ebola patients have died in the U.S.
In Milwaukee, about a dozen individuals who traveled to West Africa in recent months have been monitored as a precaution, according to Paul Biedrzycki, the director of disease control and environmental health at the City of Milwaukee Health Department.
“Most have already timed out of incubation,” said Biedrzycki, speaking to government lawyers last week at a State Bar of Wisconsin PINNACLE seminar on “Public Health Issues and the Government Lawyer.” Biedrzycki and other speakers were focusing on legal preparedness measures in dealing with public health emergencies like Ebola outbreak.
The CDC has indicated that containing Ebola in West Africa will take two years or more, Biedrzycki said. That means that big city governments like Milwaukee and Madison will be on high alert for the foreseeable future. But what does that mean from a legal standpoint?
“It means having those processes ready,” Biedrzycki said. “Preparing now helps make local health departments and officials more transparent, delineates public health authority, assures due process and due diligence, and incentivizes compliance.”
Federal, state, and local governments have police power to deal with threats to public health and safety. One such measure is the authority to quarantine. Quarantines restrict the public movement of persons who may have a communicable disease until cleared.
Those subject to quarantines have had contact with persons carrying a communicable disease, such as health workers who are caring for Ebola patients. Unlike persons subject to isolation, quarantined individuals aren’t necessarily sick. They might be.
Thus, quarantines can trigger legal challenges if overly restrictive against the individual subject to confinement, according Milwaukee Assistant City Attorney Stuart Mukamal. So far, there has been no involuntary quarantines ordered in Wisconsin for Ebola.
In October, however, public health officials in Maine attempted to keep Kaci Hickox confined to her home after returning from Sierra Leone, where she performed nursing duties. However, Hickox challenged the quarantine as too restrictive.
A judge ruled that confining Hickox to her home was illegal because the state did not show by clear and convincing evidence that limiting her public movements was needed to protect the public. The judge ordered monitoring but not confinement.
The decision bolstered a critical view of states, including New York and New Jersey, which have imposed mandatory 21-day quarantines on all health-care workers who return from West Africa. An editorial in the New England Journal of Medicine, for instance, said such a mandatory measure is “like driving a carpet tack with a sledgehammer: it gets the job done but overall is more destructive than beneficial.”
The editorial stated that such laws are unscientifically based and could impede efforts to contain the Ebola outbreak, suggesting health-care professionals could be hesitant to volunteer overseas if they know they’ll face a three-week mandatory quarantine.
With each new case of Ebola, though, comes public fear that anyone traveling to Ebola hot zones will bring Ebola home. In a CBS News Poll, 80 percent of Americans polled said a 21-day quarantine should be mandatory for persons who travel to West Africa.
The CDC has made recommendations on handling persons who travel to West Africa. The public movements of low or no risk persons – persons who travel to Ebola-stricken countries but have little or no contact with symptomatic patients – are not restricted under CDC recommendations, although they may still be subject to monitoring.
Only high-risk and some mid-risk persons are subject to quarantine. The CDC does not recommend mandatory quarantines for all persons who visit West Africa. However, CDC recommendations are not binding on states, which have their own authority to act.
Wisconsin Law, Milwaukee Responses
Wisconsin has not adopted a mandatory 21-day quarantine policy, but public health teams are following CDC recommendations and will use what legal measures are available under existing law to combat any threat to public health.
Mukamal, who is also counsel for the Port of Milwaukee, said government lawyers who work with public health officials are helping them assess and prepare for the legal response to a variety of situations, including court-imposed measures if necessary.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
But he admits that public health, especially the response to crisis situations, is not firmly grounded in longstanding precedent and authority. This is law that works “on the fly.”
“There really aren’t very many cases that have centered upon public-health issues when compared with the volume of cases in other legal areas,” he said.
“Public health law is a unique and different field than almost any other field of law because it has developed very differently. The sources of authority don’t parallel other areas,” he said. “In normal periods of time, it’s something of a backwater of the law.”
Mukamal notes that Wisconsin has a specific quarantine statute that requires the local health officials to investigate potential communicable diseases in their jurisdictions.
Local health officers may do what is “reasonable and necessary” to stop the spread of communicable disease, including quarantines. This is a general police power to keep the public safe. But what happens when someone won’t voluntarily comply?
Mukamal points to various statutes and regulations that provide authority to act, and notes the unique circumstances that are present when there’s a public health crisis.
“Under normal circumstances you have the government and you have an individual seeking freedom from a public-health regulation. But in times of crisis, of epidemics, you have a third party, and that is other individuals in the community who have a right to be free of disease,” said Mukamal, speaking to lawyers in the PINNACLE session last week.
So what is the strategy for Ebola? According Biedrzycki, Milwaukee’s strategy is “acute and keen surveillance, rapid and thorough investigations, and good isolation and quarantine.” Government lawyers, including Mukamal, are a key to this operation.
“We have no less than seven versions of mandatory isolation and quarantine orders ready for uncooperative individuals should they turn symptomatic, or refuse to abide by the recommendations,” Biedrzycki said. “I have Stu (Mukamal) on speed dial.”
When someone is noncompliant, the government lawyer’s response must be swift, Mukamal says. Lawyers can rely on the procedures and authority established in some statutes and regulations, but this is an area with little guidance from other sources.
“If we have an Ebola outbreak in Milwaukee or Madison or some other city, what precedent are we going to have? There isn’t any,” Mukamal said.
He said responses should rely on common sense and tailoring of the remedies to the individual circumstances of whatever epidemic the public is facing. “All of this to be done within the framework of reassuring the public that their rights are going to be protected, as well as the rights of individuals that are afflicted with dangerous diseases.”