Public Health Law for and Ethics UCB

Public Health Law: 

Public Health Law Its Sources & Application Prepared for “Public Health & Ethics in an Age of Terrorism” Peter A. Baldridge California Department of Public Health

An Old Problem: 

An Old Problem Communicable disease has long presented a threat to the stability of organized societies. Disease has often been used or contemplated as a instrument of political aggression or defense. Disease has often been a factor in deciding the outcome of campaigns of political aggression.

A Long History of Political Response: 

A Long History of Political Response Public health laws date back centuries. The founders of the United States were well aware of the impact of disease outbreaks on society. Prior to 9/11, California had a well-developed body of law to deal with disease outbreaks.

“Bioterrorism”: The New Twist : 

“Bioterrorism”: The New Twist Increases the potential that a disease outbreak could occur without prior warning. Natural and man-made pathogens have been/can be developed to maximize the harm to the target society. The technology to develop pathogens is available to persons driven by political or religious ideology to do so. Advances in transportation and globalization may make it easier to deliver a natural or man-made pathogen to the target population.

In an Era of Increased Expectations: 

In an Era of Increased Expectations People now expect more from government. Historically, purpose of public health law was to protect the organized society from disease, and the greater good was assigned more importance than the rights of the individual. Today, expectations based on individual rights are much higher. There is a growing expectation that government will solve all problems, e.g., heal the sick and make whole those who are harmed. These expectations are felt by public health officials, and sometimes causes them to lose sight of what their “public health” role is.

What is “Public Health”?: 

What is “Public Health”? It depends on who you ask. Traditionally, it involved sanitation and communicable disease control. Building standards? Air quality? Toxic waste cleanups? Healthcare licensing? Emergency response?

“Public Health” Defined: 

“Public Health” Defined For purposes of this section, "public health programs" refers primarily to programs and functions that seek to prevent illness in, and promote the health of, the public at large, in contrast with health care services programs, which relate to either the direct delivery of health care services to eligible individuals, or relate to payment for those services. Stats. 2006, c. 241, §1(c).

Public Health “Law”: 

Public Health “Law” Public health law is simply administrative law in the area of public health, subject to the same legal system & principles as the law in any other administrative area. Whether the administrative law controls or authorizes the actions of persons, the law must be consistent with the Constitution.

The Legal System: 

The Legal System The Federal and State Constitutions Establish The Three Branches of Government Legislative – makes the law Executive – executes or enforces the law Judicial – interprets the law

Legislative: 

Legislative Federal - United States Congress State - Senate & Assembly Enacts statutes. Appropriates funding for executive branch, which affects how the law is enforced. Confirms judicial and executive appointees Boards of Supervisors (County) City Councils Enact Ordinances and Resolutions

Executive: 

Executive Enforces statutes. Enacts regulations (federal & state), which is a legislative function. Conducts administrative hearings in connection with its enforcement role, which is a “quasi-judicial” function. Federal - President State - Governor Dept of Public Health Local - Governing Body Local health officers

Judicial: 

Judicial Interprets the constitution, statutes, regulations and ordinances. Each published interpretation, in effect, makes law.

Sources of the “Law”: 

Sources of the “Law” Common Law Federal and State Constitutions Statutes Regulations Judicial Opinions/AG Opinions Ordinances Enforcement Policy

Common Law: 

Common Law Derived from our legal heritage in the English court system. “Those principles, usages and rules of action applicable to the government and security of persons and property which do not rest for their authority upon any express or positive statute or other written declaration, but upon statements of principles found in the decisions of the courts.” (AmJur2d, Com L, §1.)

Common Law in California: 

Common Law in California Cal. Civil Code §22.2. The common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of this State, is the rule of decision in all the courts of this State. Many common law principles in California are now codified in statute, particularly in the Civil Code, e.g., the right to protection from bodily restraint or harm, from personal insult, from defamation, and from injury to his personal relations (Civ. Code §43) Some common law rules have never been codified, e.g. the rules of statutory construction.

Constitutions: 

Constitutions Federal State

Federal Constitution: 

Federal Constitution Federal (from the Latin word foedus, meaning league or compact). Describes the powers and organization of the three branches of the federal government. Powers include the authority to regulate matters in interstate commerce. Reserves powers not delegated to the United States by the Constitution, or prohibited by it, to the states or the people. Interpretation of the Constitution by the courts gives rise to a body of constitutional law.

Inherent Police Powers: 

Inherent Police Powers In addition to specified constitutional powers, states are regarded as possessing inherent “police” powers to prescribe, within constitutional limits, reasonable laws necessary to preserve the public order, health, safety, welfare, and morals. (Jacobson v. Massachusetts (1911) 197 U.S. 11.)

State Constitution: 

State Constitution Describes the powers and organization of the three branches of the State government. Defines the rights between individuals and government. Authorizes the formation of cities and counties, and gives the legislature the power to define their authority. Specifically recognizes the U.S. Constitution as the Supreme Law of the Land (it would be anyway).

Statutes: 

Statutes Enacted by the legislature or Congress. Valid unless in conflict with the constitution. Begin in Congress or State Legislature as bills. If enacted and not vetoed, the bill becomes a Public Law (federal) or chaptered bill (state), numbered sequentially according to the year or session in which it is enacted. Statutes in California “express the will of the supreme power of the state.” (Civil Code §22.1.)

Statutes - Codes: 

Statutes - Codes For convenience, provisions of law are usually codified, i.e., placed in codes organized by subject area. For California Codes online, see www.leginfo.ca.gov, For federal statutes, see www.gpoaccess.gov/uscode/index.html. Some provisions are uncodified, e.g. intent language. To find them, you have to look to the chaptered version (e.g., the annual budget bill), or hope they are picked up in “annotated” codes, e.g. West’s, Deering’s, which will sometimes have the uncodified provisions.

Regulations: 

Regulations Adopted where authorized by the legislature. Adopted by agencies of the executive branch of government. Must not go beyond the scope of the authorizing legislation. Valid regulations have the full force and effect of law. Allow legislature to delegate authority to agencies with greater expertise in that area to adopt the details of programs outlined in the legislation.

Regulations - Codes: 

Regulations - Codes Federal regulations are codified in the Code of Federal Regulations. Online, see http://www.gpoaccess.gov/cfr/index.html. California regulations are codified in the California Code of Regulations. Online, see http://government.westlaw.com/linkedslice/default.asp?SP=CCR-1000.

Regulations - Procedure: 

Regulations - Procedure Usually adopted in accordance with specific procedures that allow opportunity for public notice and input; may be invalidated on procedural grounds. Generally defined as any “standard of general application.” California law prohibits “underground regulations”, i.e., standards of general application adopted as “guidelines”, “manuals”, “criteria”, etc. Will be deemed regulations, and invalid if not adopted according to procedure.

Judicial Opinions: 

Judicial Opinions Present day extension of the common law. Interpret the constitution, statutes, and regulations (also private law in the form of contracts to the extent consistent with public law and policy). Can become law themselves. Have the force of law in that court’s jurisdiction. Published opinions issued by appellate courts may be cited as law in other cases.

Appellate Courts: 

Appellate Courts State appellate decisions are rendered by 6 appellate districts and the California Supreme Court. Federal appellate decisions for cases in California are issued by the 9th Circuit Court of Appeals and the U.S. Supreme Court.

Appellate Court Reports: 

Appellate Court Reports Published in reports by private services, e.g. California Reports publishes California Supreme Court decisions, California Appellate Reports publishes reports from all California appellate districts; subscription online services, e.g. www.WestLaw.com . Recent decisions available online through www.uscourts.gov (federal) and www.courtinfo.ca.gov (state).

Opinions of the Attorney General: 

Opinions of the Attorney General Do not have the force of law, but are considered persuasive by courts as to what the law is. May be requested by certain government officials, e.g., legislators, constitutional officers, district attorneys.

Ordinances: 

Ordinances Adopted by counties and cities. Valid ordinances have the force and effect of law. “A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws.” (Cal. Const., art. 11, sec. 7.)

Enforcement: 

Enforcement Depends upon the available resources and willingness of authorities to enforce. Conducted by authorized peace officers and public officers. Take cases to District Attorney. Whether law is enforced is a policy decision, e.g., medical marijuana in Los Angeles County. Dictated by political will and resources.

Who Protects the Public Health?: 

Who Protects the Public Health? The Governor supervises all state executive and ministerial officers (GC 12010), and must see that all offices are filled and their duties performed (GC 12011). Statutes create the Dept. of Public Health, and grants it specific powers and duties.

State Department of Public Health: 

State Department of Public Health The department may commence and maintain all proper and necessary actions and proceedings . . . to protect and preserve the public health. (HSC 100170) It may perform the following activities relating to the protection, preservation, and advancement of public health: (1)Studies. (2) Demonstrations of innovative methods. (3) Evaluations of existing projects. (4) Provision of training programs. (5) Dissemination of information. (HSC 100185)

Local Governing Bodies - Counties: 

Local Governing Bodies - Counties The board of supervisors of each county shall take measures as may be necessary to preserve and protect the public health in the unincorporated territory of the county, including, if indicated, the adoption of ordinances, regulations and orders not in conflict with general laws. (HSC 101025)

Local Governing Bodies - Cities: 

Local Governing Bodies - Cities The governing body of a city shall take measures necessary to preserve and protect the public health, including the regulation of sanitary matters in the city, and including if indicated, the adoption of ordinances, regulations and orders not in conflict with general laws. (HSC 101450)

Local Governing Body Appoints Local Health Officer: 

Local Governing Body Appoints Local Health Officer Each board of supervisors shall appoint a health officer who is a county officer. (HSC 101000) Every governing body of a city shall appoint a health officer, except when the city has made other arrangements, as specified in this code, for the county to exercise the same powers and duties within the city, as are conferred upon city health officers by law. (HSC 101460)

Duty of the Local Health Officer - County: 

Duty of the Local Health Officer - County The county health officer shall enforce and observe in the unincorporated territory of the county, all of the following: (a) Orders and ordinances of the board of supervisors, pertaining to the public health and sanitary matters. (b) Orders, including quarantine and other regulations, prescribed by the department. (c) Statutes relating to public health. (HSC 101030)

Duty of the Local Health Officer - City: 

Duty of the Local Health Officer - City Each city health officer shall enforce and observe all of the following: (a) Orders and ordinances of the governing body of the city pertaining to the public health. (b) Orders, quarantine and other regulations, concerning the public health, prescribed by the department. (c) Statutes relating to the public health. (HSC 101470)

General Authority to Control Infectious Disease: 

General Authority to Control Infectious Disease “Each health officer knowing or having reason to believe that any case of the diseases made reportable by regulation of the department, or any other contagious, infectious or communicable disease exists, . . . shall take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases.”(HSC 120175)

State Control of Local Health Officers: 

State Control of Local Health Officers The department [of Public Health] may advise all local health authorities, and, when in its judgment the public health is menaced, it shall control and regulate their action. (HSC 100180)

Example of Public Health Law - Isolation and Quarantine: 

Example of Public Health Law - Isolation and Quarantine Isolation and Quarantine are powers of the health officer recognized by the common law and statute. Both raise constitutional issues. The powers of isolation and quarantine are implemented by regulation and have been interpreted by the courts.

Origins of Quarantine: 

Origins of Quarantine Practice that began with requiring ships arriving in 14th century Venice from plague infected ports to sit at anchor for forty days before landing. The word “quarantine,” is derived from the Italian word quaranta, meaning forty. Its purpose was to protect coastal cities from plague epidemics.

Quarantine Accepted PH Practice in California: 

Quarantine Accepted PH Practice in California Quarantine/isolation are long-standing public health practices sanctioned by the courts. In Re Johnson (1919) 40 Cal. App. 242 - Court upheld the hospital confinement of woman with gonococcus infection by city health officer under authority to “take such measures as may be necessary to prevent the spread” of contagious disease.”

Basis for Johnson Decision: 

Basis for Johnson Decision Did not rely upon a specific statutory authorization for quarantine. Relied on former Political Code section 2979a -it is “the duty of the health officer, knowing the existence of any such contagious or infectious disease, to take such measures as may be necessary to prevent the spread thereof.” What they called “Quarantine” in Johnson was similar to isolation.

In Re Martin: 

In Re Martin Alleged prostitutes isolated without bail in San Joaquin county jail due on probable cause to believe they were infected with venereal disease. Former Health & Safety Code 2554 imposes a “mandatory duty” on health officers “to take all measures necessary to prevent the transmission of . . . disease and

In Re Martin: 

In Re Martin “in the enforcement of this legislative mandate such officers are vested with full power of quarantine.” (In Re Martin (1948) 83 Cal.App. 2d 164, 167.) Again, quarantine is a power inherent in the health officer’s legal mandate. It is not “necessary for the health officer to first determine that one is afflicted with such disease before subjecting such person to quarantine.” (Id.)

In Re Martin: 

In Re Martin “[A]ll that is required is that there be probable cause to believe the person so held has an infectious disease . . .” (Id.)

Modern Version of former HSC 2554: 

Modern Version of former HSC 2554 “Each health officer knowing or having reason to believe that any case of the diseases made reportable by regulation of the department, or any other contagious, infectious or communicable disease exists, . . . shall take measures as may be necessary to prevent the spread of the disease or occurrence of additional cases.”(HSC 120175)

Quarantine Authorized by Statute: 

Quarantine Authorized by Statute “The health officer may require isolation (strict or modified) or quarantine for any case of contagious, infectious, or communicable disease when this action is necessary for the protection of the public health.” (HSC 120130.)

Application of HSC 120175 and 120130 : 

Application of HSC 120175 and 120130 If the local health officer has probable cause to believe the person is infected and, as a matter of public health practice, quarantine and isolation are “measures as may be necessary to prevent the spread of the disease or occurrence of additional cases,” then the local health officer is required to take such measures.

Application of HSC 120175 and 120130: 

Application of HSC 120175 and 120130 The exercise of this authority does not depend upon direction from the State Department of Public Health. Local health officer required to act based upon his own finding of probable cause to believe a person is infected.

DHS Authority to Adopt Regulations: 

DHS Authority to Adopt Regulations Department of Public Health “may from time to time adopt and enforce regulations requiring isolation (strict or modified) or quarantine for any of the contagious, infectious, or communicable diseases subject to a reporting requirement if in the opinion of the department the action is necessary for the protection of the public health.” (HSC 120130.)

Quarantine Defined by Regulation: 

Quarantine Defined by Regulation “Quarantine is defined as the limitation of freedom of movement of persons or animals that have been exposed to a communicable disease for a period of time equal to the longest usual incubation period of the disease, in such manner as to prevent effective contact with those not so exposed.” (17 Cal. Code Reg., 2520.)

Quarantine Defined by Statute: 

Quarantine Defined by Statute “Persons subject to quarantine shall not go beyond the lot line where the quarantine is imposed, nor put themselves in immediate communication with any person not subject to quarantine, other than the physician, the health officer or persons authorized by the health officer.” (HSC 120225.)

Isolation Defined: 

Isolation Defined “Isolation is defined as separation of infected persons from other persons for the period of communicability in such places and under such conditions as will prevent the transmission of the infectious agent.” (17 Cal. Code Reg., 2515.) Isolation may be strict or modified.

Strict Isolation Requirements : 

Strict Isolation Requirements “If the disease is one requiring strict isolation, the health officer shall insure that instructions are given to the patient and members of the household, defining the area within which the patient is to be isolated and stating the measures to be taken to prevent the spread of the disease.” (17 Cal. Code Reg., 2516.)

Strict Isolation Requirements: 

Strict Isolation Requirements Strict isolation “shall” include specified measures under section 2614, i.e., where strict isolation is required by regulation, the health officer must include these measures in the isolation order. Health officer may include additional conditions as necessary.

Model Isolation Orders: 

Model Isolation Orders DHS has drafted isolation order templates describing additional conditions of isolation for diseases spread by airborne, droplet and contact transmission. Draft allows hospital infection controls to substitute for specific isolation requirements

How to Impose Isolation/Quarantine.: 

How to Impose Isolation/Quarantine. To be enforceable, it must be established by a rule or order of the health officer. “Any person who, after notice, violates, or who, upon the demand of any health officer, refuses or neglects to conform to, any rule, order, or regulation prescribed by the department. . .

How to Impose Isolation/Quarantine.: 

How to Impose Isolation/Quarantine. “respecting a quarantine or disinfection of persons, animals, things, or places, is guilty of a misdemeanor.” (HSC 120275.)

Agreements v. Orders: 

Agreements v. Orders Some health officers favor quarantine/ isolation agreements over orders as a less threatening alternative more likely to encourage compliance. The law does not prohibit this approach.

Agreements v. Orders: 

Agreements v. Orders However, if a person subject to an agreement breaks quarantine, there may be little recourse, other than to issue an order. Best option - Get person to agree to order. If a person subject to an isolation agreement breaks isolation, he/she may still be subject to prosecution.

Agreements v. Orders: 

Agreements v. Orders “[A]ny person afflicted with any contagious, infectious, or communicable disease who willfully exposes himself or herself to another person, and any person who willfully exposes another person afflicted with the disease to someone else, is guilty of a misdemeanor.” (HSC 120290.)

Quarantine/IsolationResponsibilities: 

Quarantine/Isolation Responsibilities When quarantine or isolation, either strict or modified, is established by a health officer, all persons shall obey his or her rules, orders, and regulations. (HSC 120220.) Isolation orders apply to the patient and caregivers Requires adequate notice to all persons.

Service of Order: 

Service of Order The order should be served on the patient. Notice should be posted to inform caregivers and other contacts of the patient or case. Draft template isolation orders included a notice to be posted. Isolation notice can be posted on room where person is isolated.

Due Process: 

Due Process Notice Opportunity to be heard? “[H]ealth regulations enacted by a state under its police power and providing even drastic measures for the elimination of disease . . . in a general way are not affected by constitutional provisions, either of the state or national government.” (Patrick v. Riley (1930) 209 Cal. 350, 354.)

Due Process: 

Due Process No statutory requirement for hearings, other than for tuberculosis. Quarantine and isolation are forms of civil preventive detention, not punitive criminal detention requiring full due process. Probably best to provide the detainee some admin. opportunity to be heard. Draft Template Orders - informal hearings

Where Does Quarantine/Isolation Occur?: 

Where Does Quarantine/Isolation Occur? The department may establish and maintain places of quarantine or isolation. (HSC 120135.) Each health officer, whenever required by the department, shall establish and maintain places of quarantine or isolation that shall be subject to the special directions of the department. (HSC 120200.)

Where May Quarantine/Isolation Occur?: 

Where May Quarantine/Isolation Occur? Wherever the conditions and purposes of quarantine and isolation can be served. Isolation Hospitals Home Hotels Quarantine Individuals - Home Travelers - Hotels Jail

Who Enforces Quarantine/Isolation?: 

Who Enforces Quarantine/Isolation? Statutes now specifically authorize sheriffs and police to enforce orders of the health officer within their jurisdiction. Misdemeanor arrests may be affected by peace officers and sometimes by public officers.

Who Enforces Quarantine/Isolation?: 

Who Enforces Quarantine/Isolation? Once arrested for violation of order, person may be subjected to civil detention by sheriff. Health officer could order sheriff to enforce.

Quarantine - Communities: 

Quarantine - Communities “No quarantine shall be established by a county or city against another county or city without the written consent of the department.” (HSC, 120205.) Implies that such quarantines can be established.