THE EVOLVING ROLE OF PUBLIC HEALTH LAW IN CONTAINING INFECTIOUS 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 level   Annual Public Health Law Conference   Facilitation of Public Health Law Association   Forensic 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 scientists   Assure scientific basis for legal powers and conclusions   Break down barriers to achieve interdisciplinary approaches

FOUR COMMON THEMES IN EMERGING PUBLIC HEALTH CHALLENGES 1. Traditional public health laws do not always fit new problems 2. Must continuously balance individual rights with effective protection of public’s health 3. Legal approaches must be interdisciplinary and coordinated 4. Must be proactive planning for interdisciplinary legal preparedness

1. 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. 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. 3. Imperative that legal approaches be interdisciplinary and coordinated   Substantive areas   Legal   Legislative   Judiciary   Academic   Law Enforcement   Science/medicine

  Emergency management   Agriculture   Food, drugs and dairy   Health care facilities and professionals   Advocates for civil rights

  Jurisdictions   International   Federal   State   Local   Consider as examples   Monkeypox   SARS   Bioterrorism

4. 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 quarantine   Notice   Initial detention, post deprivation rights   Right to counsel   Clear and convincing evidence, least restrictive means; must be tied to particular circumstances, scientific basis   Application to groups

Reporting/release of medical information   Release of information to media/public   Provider reporting to public health   Public health/law enforcement exchange of information   HIPAA issues, confusion

Licensure/certification issues   Scope of practice limits for professionals   Out of state professionals   Use of unlicensed personnel   Emergency hospital privileges

Emergency management issues   Disaster declaration   Suspension of laws   Mutual aid   Liability issues

Informed consent   Emergencies (i.e., SNS distribution)   Vaccinations, experimental treatment Injury compensation/liability

Extraordinary powers   Closure of facilities, control/destruction of property   Disposition of human remains   Mandated 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, discuss with counsel disaster privileges, privacy issues, informed consent, liability issues For clinicians affiliated with providers and payers, discuss with counsel disaster privileges, privacy issues, informed consent, liability issues For clinicians affiliated with public health, discuss with counsel isolation and quarantine protocols, plans for EIDs, disaster plans, confidentiality issues For clinicians affiliated with public health, discuss with counsel isolation and quarantine protocols, plans for EIDs, disaster plans, confidentiality issues

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