Presented by Dr. Drew Harris, UMDNJ in cooperation with Rutgers University, University of Medicine and Dentistry of NJ Supported by the NJ Department of Health and Senior Services

Legal aspects of public health emergencies

• Foundation and framework of NJ public health law
• Public good vs. private Interest
• Professional obligations
  • Departmental
  • Individual

Let's focus on the tension between the protecting the public good vs. private interest.

Public health law is a balance between "protecting and promoting health" and "protection of individual rights."

Where is this line? How far can we go?

Background information: "Public health laws requiring vaccinations or immunizations to protect the community have generally withstood legal challenges claiming that they infringed on the rights of individuals to make their own decisions. A precedent-setting judicial opinion upheld a Massachusetts ordinance authorizing local boards of health to require vaccinations for smallpox to be administered to residents if deemed necessary by the local boards. Such decisions argue that laws that place the common good ahead of the competing rights of individuals should govern society. Similarly, courts have weighed the power of the state to appropriate an individual's property or limit the individual's use of it if the best interests of the community make such an action desirable. In such circumstances, equitable compensation must be provided." Public Health: What It Is and How It works, Turnock

An interesting story: "When cholera broke out in South Amboy, in 1866, the very bed on which the patient died was sold at auction. When a physician had sought in vain for power to obtain it and to use disinfectants, he only saved the town from a fearful risk by seizing the articles and burning them by active and illegal force." — Report of the Health Commission of the State of New Jersey, 1874. The statutory authority to enforce effective public health measures did not exist at that time.

Limitations of public health law

Due process is mentioned in two places in the Constitution; in the 5th Amendment (for federal) and in the 14th Amendment (for States). The reference in the 5th Amendment applies only to the federal government and its courts and agencies. The reference in the 14th Amendment extends protection of due process to all state governments, agencies, and courts. Due process applies whenever a liberty or property interest is detained (i.e. when a person is required to accept immunization or property is seized.) The state's power to protect public health has limits—– a system of checks and balances. Ideally, the state should do no more than the absolute minimum necessary to protect the public's health.

Where do we find these limits?

1. Specified in the statutes (e.g.: religious exemptions for mandatory immunizations);

2. Imposed by judicial oversight; "A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully."

3. Influenced by political leaders concerned about political repercussions.

Habeas Corpus ("Bring me the body") Public health authorities must present evidence to a judge justifying detaining or restricting anyone. Imposed by judicial oversight; “A writ of habeas corpus is a judicial mandate to a prison official ordering that an inmate be brought to the court so it can be determined whether or not that person is imprisoned lawfully.” [http://www.thelegalbeagle.com/glossary.htm ]
In public health contexts, a confined person has the right to have a judge decide whether further confinement is legal or appropriate. Public health officials must present evidence as to why this is needed.

Political will

Influenced by political leaders concerned about political repercussions. Not part of any statute or constitution, but very important.

e.g. The State Public Health Council (part of the NJDHSS) passed a regulation banning the sale of undercooked egg products in restaurants. There was sound scientific basis for the regulation—people were getting Salmonellosis from contaminated eggs. However, the public backlash was extreme and the Governor intervened, having the regulation withdrawn. Here, the public viewed the regulation as too great an infringement on individual rights by the state, not outweighed by the facts they had in hand supporting the new rule.

The opposite situation occurred in the early days of the HIV/AIDS epidemics when some in the public pressed the politicians for laws that would severely limit the rights of infected people and went far beyond appropriate infection control measures. These laws were challenged in the courts as being too severe a restriction on individual freedom.