1 Bioterrorism and Legal Issues: Commonwealth of Massachusetts Donna E. Levin, Esq. General Counsel Massachusetts Department of Public Health

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4 LEGISLATIVE REVISION USE THE MODEL ACT AS A GUIDE UNDERTAKE CAREFUL REVIEW OF CURRENT LAW AMEND CURRENT LAW AND TAILOR IT TO ACCOMODATE NEW, NECESSARY PROVISIONS RETAIN EXISTING LAW WHERE POSSIBLE TO PROTECT PRECEDENT, INTERPRETATIVE CASE LAW AND HISTORICAL EXERCISE OF AUTHORITY

5 Necessary Legislative Revision Antiquated Law Broad Authority Without Adequate Directives for Implementation Lack of Due Process Issues Simply Not Addressed: GAPS

6 Necessary Legislative Revisions GAPS Liability Protection for: –Individuals Assisting or Providing Use of Property –Health Care Providers: Good Samaritan Laws Expanded Roles for Health Care Providers Credentialing Isolation and Quarantine/Mandatory Treatment and Vaccination – Due Process Protections

7 Necessary Statutory Revisions GAPS Health Orders Emergency Funds Authority where “Disease” may not be involved: Chemical Release/ Mystery Exposure” Authority to Detain/Obtain Contact Information Confidentiality/Ability to Share Information as Necessary, including with Law Enforcement

8 Who is in Charge? What Law Controls? Emergency Powers Working Group Assessment of Legal Authority of Various Agencies and Law Enforcement Finding the Gaps Providing Solid Legal Authority for Determining Who is in Charge/ What Law Controls/How Law Enforcement and Public Health and Other Agencies Coordinate Working with Scenarios

9 Working with Law Enforcement Limitations on Law Enforcement’s Ability to Assist Public Health Officials in an Emergency Situation or Declared Public Health Emergency: Law Enforcement Responsibilities: Action is to Detect and Gather Evidence of Criminal Activity or Apprehend Criminals Police Officer Exercising “Law Enforcement Activities” Limited by 4 th Amendment which Prohibits Warrantless Search and Seizure even during Public Health Emergency

10 Limitations on Exercise of Law Enforcement Activities Without court order/warrant, Police Officer Exercising Law Enforcement Responsibilities has no constitutional authority to: Detain crime victims and witnesses Order victims or potential victims to be isolated Order persons or property to be decontaminated Compel a person to receive medical evaluation or care Order an evacuation of private property for public health or safety reasons Seize/Secure building or vehicle to, e.g. stop spread of harmful agent

11 Community Caretaking Doctrine Police Officer Can Act if Immediate Action Is Needed to Prevent Serious Harm to People or Property without Court Order/Warrant. Four Conditions must be Present: 1. Police Officer has reasonable grounds to believe an emergency exists that presents an imminent and serious threat to life and/or property. 2. Police officer must, in fact, take immediate action (delay only to bring appropriate emergency personnel and resources to the scene or protect the safety of the police officer).

12 Community Caretaking Doctrine, con’t. 3.Police Officer’s actions must be totally divorced from the detection or investigation of crime, or acquisition of evidence. No exercise of “law enforcement activities”. 4.Police Officer’s actions must be reasonable in light of the particular emergency, and no broader than necessary to alleviate the emergency.

13 Case Law: Community Caretaking Doctrine Mincey v. Arizona, 437 U.S. 385 (1978) Michigan v. Tyler, 436 U.S. 499 (1978) South Dakota v. Opperman, 428 U.S. 364 (1976) Cady v. Dombrowski, 413 U.S. 433 (1973)