Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

Quarantine and Due Process


Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited


 Paula Mindes

excerpted from: Paula Mindes, Tuberculosis Quarantine: a Review of Legal Issues in Ohio and Other States , 10 Journal of Law and Health 403-418, 413-417, 424-426 (1995-96) (160 Footnotes)


The power to isolate someone who has not committed a crime whether at home or in a hospital is a form of civil commitment. The procedure by which this is done may be administrative or judicial or both. At stake in these proceedings on one side are the right of the community to be protected, and the duty to care for people who may not be able to care for themselves. Both are aspects of parens patriae. Individuals have an obligation not to harm other members of the community by their actions. On the other side are the constitutionally protected liberties of individuals and their right to due process when they may be deprived of liberty. In recent years there has been a major alteration in the law governing involuntary incarceration in non-criminal cases. The community may not deprive individuals of liberty without substantial reasons demonstrated through convincing evidence, as shown in the following cases from various jurisdictions.

One aspect of these procedural rights is the right to be represented by counsel. In In Re Gault the Supreme Court required counsel to be provided to juveniles who were before the court. These were not criminal proceedings. Because incarceration could be the result of the court action, counsel was nonetheless required. Humphrey v. Cady addressed the curtailment of liberty in involuntary hospitalization succeeding a prison Humphrey was held under the Washington State Sex Crimes Act, which did not provide for jury determination of renewed commitment. He had served his sentence and was recommited to prison. The Court remanded the case to the trial court for an evidentiary hearing. It noted the similarity between the renewal of commitment under civil law (which required a jury trial) and the commitment in this case which did not. Some sort of due process protection was in order "to justify such a massive curtailment of liberty."

O'Connor v. Donaldson limited commitment of alleged mentally persons who were not a threat to the community. Their liberty interests were held to be paramount. In Addington v. Texas, the Court held that civil commitment was a significant deprivation of liberty and could not be imposed without due process protection, specifically addressing the standard of proof to be used. Addington was committed when a court held that he needed to be hospitalized for his safety and the safety of others. The evidentiary standard applied by the court was proof by a preponderance of the evidence. An appeals court reversed Addington's commitment because the standard applied should have been proof beyond a reasonable doubt. In noting that only one other state applied a preponderance standard, the Supreme Court held that clear and convincing evidence was the correct standard to be applied, in order to ensure due process under the Fourteenth Amendment. It was already in use in the majority of states. States might adopt higher standards if they wished to but it was not necessary.

In Vitek v. Jones the Court said that even medical determinations like mental illness assessments could not dispense with due process. If someone who was not a prisoner was subject to involuntary hospitalization, protected liberty interests would be unconstitutionally infringed without due process under the Fourteenth Amendment. The Court upheld the district court's requirements of notice, hearing, the right to present and examine evidence, the right to an independent decisionmaker and the right to counsel. Although four justices believed that counsel should be provided for prisoners who could not afford counsel, this was not the majority opinion. The court reasoned that the demand for assistance required qualified and independent assistance, but did not require the appointment of a licensed attorney. On this reasoning, the court might not affirm the provision of counsel for persons who are physically ill. On the other hand, if a court regarded both proceedings as an exercise of parens patriae, it might provide the same protections to the person with either disability.

This series of cases established that when someone is the subject of a hearing which will adjudge them incompetent or insane, they have a right to be represented by counsel. Vitek does not clearly afford the right to appointed counsel. According to a recent Annotation, in certain instances states do provide for appointed counsel. Persons being adjudicated mentally ill must be able to consult with counsel, and counsel should be able to cross-examine witnesses. The liberty interests of the individual must be balanced against the severity of the threat he/she is alleged to pose to society. Arguably, however, indigents may not have a Constitutional right to appointed counsel in competency hearings.

The proposition that people subject to involuntary commitment are entitled to the assistance of counsel receives additional support from a different line of cases. A recent review of individual rights in other administrative proceedings asserts that adjudicative procedures implicating fundamental rights may require counsel.

When public health authorities, as opposed to courts, make judgments which apply law to facts they are engaged in adjudication. State laws which permit quarantine decisions to be made by public health authorities rather than courts create adjudication procedures. It therefore appears that they are not exempt from due process requirements.

New thinking in civil commitment law was focused on a quarantine case for the first time Greene v. Edwards, a 1980 West Virginia case. Greene had been committed to a hospital under court order issued pursuant to the West Virginia Tuberculosis Control Act. A petition alleging that he had active communicable TB had been filed with a state circuit court, which scheduled a hearing. A copy of the petition and notice of the hearing were served on Greene. He was not however advised of his right to counsel. At the hearing an attorney was appointed for him but he was not given time to confer with the attorney. As a result of the hearing he was ordered to be committed to the hospital for treatment.

Greene filed for habeas corpus and alleged that his procedural due process rights were violated in three principal ways: first, he was not guaranteed the right to counsel; second, he was not given the right to confront witnesses, cross-examine them or present his own; and lastly, the standard of proof applied was not clear and convincing. In a per curiam opinion, the West Virginia Supreme Court agreed with him on all counts. The court began its analysis by recognizing the statutory purpose of preventing an actively infected person from becoming a danger to others, and then said "[a] like rationale underlies our statute governing the involuntary commitment of a mentally ill person."

The court considered State ex rel. Hawks v. Lazaro, an involuntary commitment case. In Hawks they had stressed state and federal constitutional guarantees against deprivation of life, liberty or property without due process of law. When someone is adjudged to be insane there is a partial deprivation of liberty, which calls for due process to be provided.

Because the quarantine and involuntary commitment laws had similar purposes and caused similar deprivations of liberty, the court held that the same due process protections were required in Greene's case. Since he had not been afforded these protections, a writ of habeas corpus was granted, in addition to the right to a new hearing. The procedures required were:

(1) an adequate written notice detailing the grounds and underlying facts on which commitment is sought; (2) the right to counsel; (3) the right to be present, cross-examine, confront and present witnesses; (4) the standard of proof to be by clear, cogent and convincing evidence; and (5) the right to a verbatim transcript of the proceeding for purposes of appeal.

The court said this ruling would apply prospectively to similar cases.

Due process elements similar to those in Greene are now in place in many states. The 1993 revision of New York City's TB control procedures included the right to counsel, appointment of counsel for indigents and judicial review of commitment. Proof of the need for detention was to be shown by clear and convincing evidence. In 1994 Washington State required its board of health to adopt due process standards for public health officers to use in case of involuntary detention, testing, treatment or isolation of TB patients. Public health authorities draw on civil commitment law in making recommendations for changes in TB law.

The Centers for Disease Control Recommendations of the Advisory Council for the Elimination of Tuberculosis (ACET) says:

[a]s in commitment proceedings under state mental health laws, any law under which a person may be examined, isolated, detained, committed and/or treated for TB must meet due process and equal protection requirements under state and federal statutes and constitutions. Also, all patients who are subject to these legal proceedings should be represented by legal counsel.

The next section examines Ohio law with respect to quarantine and civil commitment.


Case law will be considered first because most of the cases precede changes made in Ohio civil commitment law in 1989.

In the Fisher case inmates of a mental institution filed habeas corpus writs alleging denial of due process under the Fourteenth Amendment. They could not afford counsel and had not been provided with counsel at their commitment hearings. The court, relying on Gault, supra stated that there is a right to counsel in cases of civil commitment for mental illness. The proceedings in both types of cases are non-adversarial and may result in incarceration. The court was also concerned that civil commitment hearings could use hearsay evidence which would not be admitted in criminal cases. There was also not a good enough written record to be used in case of appeal.

Because of the seriousness of the rights and liberty interests involved the court held that due process required assistance of counsel. Anyone subject to such a proceeding had to be advised of their rights and have counsel appointed if they could not afford it. The right to counsel might not be waived if the person was not competent to understand the meaning of the action.

The Slabaugh case concerned a man who was committed without having an opportunity to consult with counsel of his own choosing. The court had appointed counsel for him in his absence, and refused to grant him a continuance to obtain the counsel he wanted. The Appeals Court held that this was an abuse of discretion and remanded the case. They did not however accept the plaintiff's argument that the statute was unconstitutionally vague as to what constituted grounds for commitment.

Under the Ohio Revised Code there are specific provisions to be followed in involuntary commitment cases. In re Miller considered both the emergency and non-emergency procedures. Miller was arrested and hospitalized under an emergency commitment order. The court found that he had not been given his due process rights under the law. He was not told he had a right to a phone call to a lawyer or physician, the right to counsel and independent psychiatric evaluation, and a hearing. Because the case was reversed on these grounds, the court did not address the appellant's arguments about the constitutionality of the statute.

Unlike the sections of the Ohio Revised Code which concern tuberculosis and quarantine, the Code is very specific about due process protections for people who may be involuntarily hospitalized for mental illness. Some of the relevant sections are:

5122.05 - A person who is involuntarily detained must be immediately provided with a written statement of his or her rights. These rights include "a reasonable number" of phone calls to an attorney and/or licensed mental health professionals; the right to counsel and independent evaluation of his or her mental state. Both counsel and independent mental health experts will be provided to the indigent.

5122.11 - Judicial hospitalization is initiated when an affidavit is presented to the court alleging that a person is mentally ill subject to hospitalization by court order. One or more types of evidence (reliable information, direct knowledge, or written certification) should accompany the affidavit. Temporary detention is permitted, if the court determines there is probable cause to believe the individual is mentally ill and subject to hospitalization by court order.

5122.13 - The court refers the affidavit for investigation to appropriate authorities, and receives a written report from them. The report is not permitted to be submitted in evidence but a copy must be provided to the respondent's counsel.

5122.141 - This provision specifies in great detail the timing of the required hearing. If the hearing is not held within the required period of time the respondent must be discharged and the records expunged.

5122.15 - A full hearing must be held, at which the respondent must be represented by counsel. The court will hear "only reliable, competent and material evidence." An adversary process is required. Proof must be by "clear and convincing evidence."

Both statutory and case law in Ohio are consistent with a national consensus about involuntary civil commitment for mental illness.

According to Judge Donnelly of the Cuyahoga County Court of Common Pleas Probate Division, quarantine cases have been so rare in the last thirty years that the question of due process protections has not arisen. While the right to counsel is not contained in the quarantine or tuberculosis laws, he believes that all respondents in probate cases automatically have a right to counsel. In his court anyone appearing in a quarantine case would be told of their right to counsel. Counsel would also be provided to indigents as in other types of cases. He concludes that counsel is necessary by analogy to the commitment procedures in mental illness. It is also necessary to satisfy Constitutional due process requirements.

Other judges might have different opinions, given that the right to counsel and related due process protections are not currently part of quarantine law. The author believes that it would be preferable for Ohio law in this area to reflect the principles incorporated in civil commitment law.

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