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

Quarantine Law

 

Syllabus
Resources
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, 408-413, 418-423 (1995-96) (160 Footnotes)

 

There are two principal sources of current legal thinking on quarantine for contagious diseases. The first originates in the law of quarantine itself. The second concerns civil commitment adjudication. Quarantine laws are limited to controlling infectious diseases. Civil commitment laws govern incarceration when people are a danger to themselves or others, are mentally ill and unable to care for themselves, or present a danger to others because they spread infectious disease.

Before antibiotics, quarantine was important in preventing the spread of infection. Since it was not possible to attack bacterial causes of disease directly, sources of disease had to be kept away from other people. According to a recent study in the Journal of the American Medical Association, many state statutes which address the control of contagious diseases have been on the books since the turn of the century. The leading case on quarantine, Jacobson v. Massachusetts was decided in 1905. Even more recent statutes were enacted forty years ago. Only ten states have substantially changed their TB-related law within the last few years.

The public health powers in state statutes include: compulsory examination and treatment, emergency detention and quarantine. Quarantine may be defined as either in-home isolation or commitment to state facilities. These measures are accomplished through public health orders or court orders. Some states have civil and/or criminal penalties for failing to comply with a such an order. Other statutes do not spell out penalties.

Some statutes define which diseases are contagious and therefore subject to quarantine regulations. Others authorize state health departments to decide which illnesses are contagious. Some empower public health authorities to make quarantine or isolation decisions without any direction as to illnesses or conditions.

Thirty-three states permit authorities to isolate people in their homes. In most cases there are no due process protections specified out in the law.

Forty-two states permit commitment to treatment facilities. Thirty-six states require a court order to commit someone to a facility. Several do not require a court order or a hearing. Generally court orders will be initiated by a petition from public health authorities requesting a hearing. Written notice to the person concerned is usually required, but the hearing may be held with or without the patient. Only thirteen states explicitly grant the right to be represented by counsel in any part of the proceedings. Of these, eleven will provide counsel to indigent individuals.

Release is accomplished when a determination is made that the person is no longer a threat to the public health, or no longer infectious. Some statutes specify criteria for release which may be vague ("no longer a danger to the public health") or specific (evidence in sputum tests that the person is no longer actively contagious). Ten states have no statutory time limits on the length of time a patient may be held without discharge or recommitment. In many states the only explicit due process protection afforded persons who are quarantined is the opportunity to petition the court for release.

In section III, infra, the due process protections of civil commitment law will be considered as they might apply to quarantine proceedings.

B. Case Law

Quarantine is a very old public health measure. Historical references date back at least to the Old Testament. When people were thought (rightly or wrongly) to have a contagious condition, they were isolated from others by confining them to their houses or by compelling them to live outside the community.

Following English common law United States quarantine laws fall under the power of the state to protect public health and safety. In Gibbons v. Ogden, the United States Supreme Court alluded to the legitimacy of quarantine under the police power. The Court directly reviewed quarantine concepts in Compagnie Francaise de Navigation a Vapeur v. Louisiana State Board of Health. The law and its implementation were upheld as an appropriate exercise of police power. The suit arose when a geographic area of Louisiana was closed off to all new entrants because of the presence of infectious disease. The plaintiffs (a shipping company) regarded the action as a Commerce Clause violation, because it interfered with foreign commerce. The Court rejected the Commerce Clause argument, holding that the law was not repugnant to the Constitution.

The dissent urged that the Court should have been addressing the particular implementation of the law rather than its constitutionality in general. The dissenters agreed however that "[t]he power of the several States ... to establish quarantine regulations ... is so well settled by repeated decisions of this court as to be no longer open to doubt."

Three years later the Court handed down the controlling opinion in quarantine law, Jacobson v. Massachusetts. The Jacobson case was about mandatory vaccination against smallpox, not quarantine. However, the Court specifically mentioned quarantine in its holding and the case is still good law.

Jacobson also settled another controversy. There had been a number of challenges to the authority of state boards of health to develop and implement public health regulations, including quarantine. Plaintiffs in these suits contended that the creation of the regulations was an illegitimate delegation of legislative power to executive or administrative bodies. State supreme courts generally upheld the creation and activities of the boards, as long as their actions were reasonable and not arbitrary. The Jacobson opinion affirmed that states could create bodies which would be given the authority to protect the public health through reasonable regulations.

Fourteenth Amendment due process challenges to communicable disease regulations were not well received by the courts. In one opinion the judge said "the Fourteenth Amendment to the Constitution ... [h]as no application to this class of case", because the state could not be made powerless to act against a contagious disease. In Ex parte Company, decided the same year, Ohio Supreme Court Justice Clark said,

[t]here is perhaps no provision of the federal constitution [sic] that is more overworked than the 14th amendment. Counsel generally are apparently unanimous in thinking that any judgment or finding as against the client denies such client the equal protection of the laws, or is without due process of law.

In 1952 the Florida Supreme Court upheld a quarantine statute against a Fourteenth Amendment challenge in Moore v. Draper. The petitioner's habeas corpus request was denied, and would only be reconsidered if he could show he was cured.

In State v. Snow, decided in 1959 the issue was whether the state had proceeded correctly under a relatively recent "Act to Require Isolation of Recalcitrant tuberculous [sic] Patients; Prescribing Methods and Procedures Therefor; and for other Purposes." The State of Arkansas had sought to have Snow committed to a TB sanatorium, alleging that he would not submit to treatment and was a danger to others. The trial court refused to issue the order on the grounds that the state had not met its burden of proof. It had not introduced some of the evidence required under the law, and other evidence introduced was out of date at the time of the trial in probate court. On appeal, the state supreme court affirmed the probate court decision because it could not find the decision contradicted by a preponderance of the evidence.

In dicta the court stated that "adjudication as to commitment ... of a tubercular person is, in some respects, similar to an inquest regarding insanity ... neither ... civil nor ... criminal but rather ... a special proceeding by the State in its character of parens patriae." It also said that the law must be strictly construed to protect individual rights.

Parens patriae is a concept which describes the obligation of the state to act as "parent of the country" in caring for those who cannot care for themselves. In this view, the infected person is incapacitated rather than a threat to the community. From an adjudication point of view, tuberculosis patients are thus similar to juveniles and the insane. This is the other side of the duty of the state to protect the rest of the community from infected individuals. It justifies similar limitations on individual rights, however.

State v. Snow demonstrates continuing support for the quarantine power while raising the parallel of the rights of the individual in insanity adjudications.

In the Halko case in 1966 the California Court of Appeals reached a different conclusion regarding individual rights in quarantine cases. Halko was confined to a hospital because of an active case of TB. After he left the institution without permission he was sentenced to jail for violating his quarantine order. He did not go to jail, but was instead quarantined for successive periods of six months in the security section of the same hospital. He petitioned for a writ of habeas corpus, asserting that the certificates of quarantine deprived him of his liberty. The court reviewed the relevant statutes and determined that health officers had all of the powers required to order and enforce quarantine orders. After a review of California case law on public health and quarantine, the court addressed the question of whether the public health authorities could restrict Halko's liberty, and found that they could. They held that when there are reasonable grounds to support the allegation of illness, personal liberty may be restrained. If someone continued to be infected, as Halko did, public health officers could continue to quarantine them. Halko may be distinguished from Snow by the statutory language. There was no provision in the California statute for a probate court review of quarantine determinations, and no specific statement of what evidence must be introduced to support quarantine orders.

The state of law was summarized by Parmet in her comprehensive 1985 survey of quarantine laws. "[W]ith the dramatic decline in the incidence of infectious disease ... courts and legislatures have not been required to modernize the law of quarantine ... [E]xisting precedent does not reflect significant contemporary developments in constitutional and public health law." One of the significant developments has been in the law governing civil commitment.

IV. OHIO QUARANTINE LAW

A. Ohio Revised Code

Relevant statutory law is found under the power of counties to establish hospitals and under the powers of the department of health and the board of health. Some still-current sections were in place before 1953 when the General Code became the Revised Code. Quarantine measures under Ohio law included isolating people in their own homes as well as removing them to public facilities. In 1949 the Attorney General considered whether "home quarantine", authorized under 4429, General Code was an appropriate exercise of the police power. Medical authority at the time discouraged in-home care because it spread infection to others in the household and did not provide the most effective treatment. The Attorney General expressed concern about the "social and economic embarrassment" involved in placarding a home and isolating the whole family. Balancing the health benefit (or lack thereof, according to medical experts) against liberty interests and social stigma, he opined that "in view of control measures now available" home quarantine would be arbitrary and unreasonable under normal circumstances. Contemporary society thinks removing people from their homes to treat their illness may be inhumane. When this opinion was written, the opposite may have been true, at least for illnesses requiring long-term care.

In 1951, 4429-1 of the Ohio General Code provided the department of health with the power to "at once ... cause [someone with a communicable disease] to be separated from susceptible persons in such places and under such circumstances as will prevent the ... conveyance of the infectious agents ... and shall enforce such restrictive measures as may be prescribed by the state department of health."

Ohio law has several provisions which govern quarantine generally. Under 3701 of the Ohio Revised Code, the department of health has the authority to "declare and enforce" or "modify, relax and abolish" quarantines. It may make other rules for preventing communicable disease. The chapter also provides that individuals shall not knowingly fail to prevent transmission of their illness to others. Those who care for sick individuals, and those who "have charge of a public conveyance or place of public accommodation" shall not recklessly or negligently fail to protect others; or fail to inform health authorities of the presence of contagion. Criminal penalties are available under quarantine law, but they do not appear to have been much used. The statutes and cases do express the obligations of infected persons and others to avoid the spread of infection.

Ohio quarantine regulations are very sweeping in the power granted to boards of health. They are also sweeping in their potential effect on people's lives. Most of the provisions below were effective when the code was revised in 1953, and were carried over from similar provisions in the General Code. Quarantine regulations are covered under 3707. Key provisions include the following:

3707.06 - Physicians or other persons "called to attend" persons with contagious diseases are required to report to the health commissioner "the name, age, sex, and color [sic] of the patient."

3707.07 - In case of a complaint or reasonable belief that there is infectious disease at a particular place, the board of health shall have it inspected, and may either send the sick person to a facility, or quarantine the location, including any people exposed to the disease.

3707.08 - Where there is infectious disease, the board shall isolate infected persons and those exposed, and have the location placarded. Anyone isolated or quarantined must have written permission to leave locations to which they are restricted.

3707.14 - When people are quarantined the board of health is obligated to provide food, fuel and other necessities, at public expense if necessary.

3707.16, .20 - Quarantined persons may not attend school, places of worship or other public gatherings. They may not be sent to any institution such as a jail, children's home, or institution for the blind or mentally ill without notice of their illness or exposure.

Significant changes were made in 1955, with the passage of Amended House Bill 127, "'[t]he Recalcitrant Tuberculosis Law' enacted to protect society and based upon the legal principle that liberty implies absence from arbitrary restraint, not immunity from reasonable regulations imposed in the interest of society". This legislation was considered to be a significant advance, "protective rather than punitive." It put in place the specific mechanisms for implementing 339.40, infra, evidentiary requirements, and mechanisms for release. There is no mention of the right to counsel, however.

Key provisions of Chapter 339 include the following:

339.40 - when proper presentation of facts has been made, the board of health is authorized to order the removal of persons with TB who are a menace to public health and cannot be treated at home. If someone is suspected of having TB on the basis of medical evidence, that person may be compelled to be examined regularly until certified as "free from tuberculosis in a communicable stage."

339.51 - evidence of communicable TB consists of laboratory reports of sputum or other body fluid which are positive for the presence of TB bacilli, or chest X-rays which show active TB. A sputum test showing bacteria means the person is considered to have active TB for three months or until three successive tests show no bacilli.

339.52-.60 a board of health may request an order from the probate court to remove someone to a tuberculosis facility. The board must file an application with the court alleging that the person is suffering from TB, is a menace to public health, and has either "refused to enter or has absented himself from a tuberculosis hospital against medical advice." After an application has been filed, a hearing is scheduled. The person named in the application must receive a summons no less than three days before the hearing. The judge examines any witness from the board of health and any others. The hearing may be conducted without the person summoned, if he or she does not appear.

If the judge determines the allegations of the application are true, "the ... court shall enter a commitment order committing the person to a facility." When someone is committed, she or he remains hospitalized until discharged. After ninety days a patient may apply to the same probate court to be discharged. The discharge is requested on the grounds that the patient no longer has communicable TB, and thus is not a menace to public health. The court holds a hearing within seven days. If it determines that the patient is not infectious, the discharge will be ordered, but not otherwise. Patients may also be released when an appropriate public health official certifies they are no longer a menace to the community.

There is no other mechanism for requesting release under this section, but see the discussion of section 3707, infra.

B. Ohio Case Law

Relevant Ohio case law deals with the powers of the board of health to make and enforce regulations. Cases of actual quarantine involved smallpox or venereal disease (VD) rather than tuberculosis. An early important case was Ex parte Company. Company concerned requests for habeas corpus filed by two women who had been arrested for prostitution. Neither was convicted. One was discharged by the court and the other was found not guilty. While they were in custody they had been found to have VD. When their cases were resolved they were quarantined for the disease and applied for habeas corpus to be released from quarantine. They asserted that the quarantine, examination and detention provisions of the Sanitary Code violated the Fourteenth Amendment of the U. S. Constitution and section 5. Article 1 of the Ohio Constitution; that the provisions violated Ohio law; and that the legislature was not permitted to delegate its power to make laws to other bodies.

The court readily disposed of the Constitutional claims on the grounds that legislative power to enact "reasonable and proper restraints" for the public good "is no longer open to question". It noted that the Fourteenth Amendment did not extend the Bill of Rights to the States. The statute provided that anyone charged with a prostitution offense should be held if they were found to be infected with a venereal disease. The court found that the law was adequately supported by another statute which provided for the quarantine of any persons infected with venereal disease, incarcerated or not.

Lastly the court determined that the legislature had given administrative authority to boards of health to create rules and regulations. Such grants of authority had been upheld in a number of other states. Only one case with distinguishable facts held otherwise. The court dismissed the petitions and remanded the petitioners to the health commissioner.

Turner v. Toledo noted in dicta that the legislature has the power to protect the public health, and the board of health has the power to quarantine persons who were infected with or exposed to contagious disease (in this case smallpox).

State ex rel. Sippel et al. concerned tuberculosis hospitals funded under the taxation powers of counties. The plaintiffs alleged inter alia that the legislature did not have the right to enact TB laws. The Darke County Common Pleas Court relied on the legislative power to pass laws for the protection of the public. "[It] is the judge of the mischief and the remedy for tuberculosis."

McGowen v. Schaeffer concerned plumbing, but addressed the powers of the legislature and boards of health. Plaintiffs contended there was no statutory power which would permit licensing. The court stated that boards of health and municipalities had the right to enforce public health regulations. They held that the statutory "may" meant "'shall"' pass such rules and regulations as they deem necessary for ... the health and welfare of the public." The power granted to boards of health was not a delegation of legislative power, and would only be limited by the courts if it was abused. In conclusion the court said "[t]he implied powers of a board of health should be given construction in the broadest sense, and police powers exercised by the board should be liberally construed ... because ... boards are the sentinels guarding the people from ... diseases which might well develop into an epidemic."

A quarantine-related question was at issue in Ex parte Mabel Mason. Mason was a prostitute who had been quarantined. She argued that she could not be held without proof beyond a reasonable doubt that she had VD. The court held the quarantine procedure was analogous to commitment of juveniles. As a result it did not call for trial by jury and proof beyond a reasonable doubt was therefore not necessary. In this opinion the court addressed only the criminal law standard of proof. Neither the plaintiff nor the court appear to have considered due process issues in their arguments.

Quarantines rarely seem to have been overturned. One such case based on procedural grounds was In re Mossie Jarrell. For unknown reasons Jarrell was arrested by Cincinnati city police and put in the workhouse, where she was examined by a doctor who reported that she had a venereal disease. She was then quarantined and filed a habeas corpus petition for release. The court granted it, because the proper procedures had not been followed in confining her. The examination was made pursuant to an illegal arrest. The quarantine order was issued not by the health commissioner as required by the regulations but by a clerk in his office. The health commissioner had not made the necessary finding that Jarrell had VD. For these reasons the court held the quarantine void and granted the habeas corpus petition. The court did not address any general due process concerns with quarantine orders.

Ex parte Kilbane demonstrated that correctly executed quarantine orders were still acceptable. The Kilbane case was factually very similar to Company, and was decided on the Company precedent. The court held that Kilbane was not "unlawfully restrained and deprived of her

Thus in Ohio as in the rest of the country the legislature has the power to create boards of health, which themselves have the power to create and execute a wide variety of public health regulations. What distinguishes Ohio law in this area is the fact that it has not been modernized.

 

 
 
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 11/30/2002

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