Laws on Contagious Disease Quarantine

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Kelly O’Connell
Environmental Health Concerns 4808
Project 5

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. 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. 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...
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