Introduction
Communicators
and spokespersons should be aware of basic laws governing media and
public health - to protect their organizations, the public, and themselves.
Be familiar with the major legal issues that can affect your communication
work. In the heat of a crisis, it would be difficult to research
media
law issues. Be aware of the basic issues. Because it is extremely difficult
to stay up to date on these legal issues, know who does. Make sure
you
have a "go-to" reference or a person to turn to for review
if an issue is questionable.
Relevant
Laws And Acts
The follow
are Laws, Acts, and related information that you should be familiar
with:
Law
Of Defamation
A knowledge
of libel law is important for those involved in any kind of public communication.
Any communicator
who feels compelled to report, in tangible form or in a broadcast, that
an identifiable person or business firm may be involved in illegal,
unethical, immoral, or dishonest activity risks being sued for defamation.
Defamation
is communication that:
- Exposes
an individual or organization to hatred or contempt
- Lowers
an individual in the esteem of others
- Causes
an individual to be shunned, or
- Injures
an individual in his business.
There are
two forms of defamation:
- Slander
is spoken defamatory communication in the presence of others.
(Slander
is not published or broadcast.)
- Libel
is published or broadcast defamatory communication.
Retractions
If you
defame someone, one possible way to resolve the problem is to publish
a retraction.
Copyright
Copyright
is the right of a writer, composer, artist, or photographer to own,
control, and profit from the production of his work. Copyrighted material
may not be republished without the copyright owner’s permission. Often,
you must pay to use the copyrighted work. Copyright law does not apply
to facts, events, ideas, plans, methods, systems, blank forms, or titles.
The fact
that copyrighted materials may be found online does not mean that you
can use those materials without the author’s permission. Users should
assume that materials found online through the Internet/intranet or
other online service are copyrighted unless they clearly are works of
the U.S. Government or otherwise noted to be in the public domain.
Generally,
users may print or download one copy of a copyrighted document for personal
use, unless different terms are specifically provided at the site or
are provided in the online service license agreement.
Americans
with Disabilities Act of 1990
Under
the Americans with Disabilities Act of 1990 (ADA), which prohibits
public
entities from discriminating on the basis of disability, health departments
must ensure that their services, policies, and practices—essentially
every aspect of their service delivery programs—meet extensive
requirements. The regulations cover activities of the health department,
whether provided
directly or through contractual licensing or other arrangement. The
ADA requires, among other things, that public entities:
- Provide
qualified disabled individuals the opportunity to participate in the
same services and programs of activities as others; separate and distinct
programs are not acceptable.
- Operate
each service, program, and activity in locations that are readily
accessible
to and usable by individuals with disabilities.
- Take
steps to ensure that communication with applicants, participants,
and members of the public with disabilities are as effective as communication
with others.
Civil
Rights Act of 1964, Title VI
The Civil
Rights Acts of 1964 prohibits discrimination based on race, color, or
national origin. Section 601 of the act states:
No person
in the United States shall, on the grounds of race, color, or national
origin, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity
receiving Federal financial assistance.
Recently,
health departments have been challenged for discrimination based
on
national origin and limited English proficiency. A complaint was filed
with the U.S. Office of Civil Rights by an Illinois resident on
behalf
of himself and other non- and limited-English-speaking persons, alleging
that an Illinois county health department discriminated against
them
based on national origin. The complaint specifically alleged that the
county denied and/or delayed their receiving services, required
them
to provide their own interpreters, and treated them in a discriminatory
manner. As evidence of the latter, the complainants asserted that
county
officials made negative comments, had a hostile attitude, and assigned
them to Spanish-speaking clinics.
As a result
of the complaint, the Illinois county worked with the complainants and
the U.S. Office of Civil Rights to hire interpreters, conducted sensitivity
training for its staff, and reorganized delivery services to prevent
segregation of Spanish-speaking persons.
The guidance
memorandum is available from the United States Office of Civil Rights,
Regional Managers. Regulations implementing Title VI can be found at
45 CFR Part 80 and 28 CFR Part 42.
Right
To Know Versus Need To Know
When releasing
information, elected officials and civil servants must weigh the public’s
right to know against the need for national security and individual
privacy. Citizens expect to know how their money is being spent and
how these resources are being used. They have a "right to know"
about the government’s activities.
The public’s
right to know is not strictly a legal concept supported by the Constitution
or an act of Congress. Instead, it is a concept promoted by officials
in all branches of our government as the proper approach to the disclosure
of information because the government depends on the support of those
it governs.
Keeping
certain sensitive information secret is of paramount importance to the
defense and operation of a government. The "need to know"
concept is used to keep sensitive information in the hands of those
whose duties require its use and away from potential enemies of the
United States.
The following
are CDC’s principles of communication regarding the public’s right to
know:
- CDC
will make available timely and accurate information—through proactive
new releases or in response to specific requests—so that the public,
Congress, and the news media may assess and understand its scientifically
based health information and programs.
- Final
reports, information, and recommendations will be made fully and readily
available.
- Communication
will be open, honest, and based on sound science, conveying accurate
information.
- Information
will not be withheld solely to protect CDC or the Government from
criticism or embarrassment.
- Information
will be released consistent with the Freedom of Information Act (FOIA).
- Prevention
messages will be based on supportable scientific data and sound behavioral
and communication research principles. At all times, health messages
will remain scientifically valid and accurate. CDC will honor embargo
agreements with standards of peer-reviewed periodicals in the scientific
and medical communities.
- Targeted
health messages will be sensitive to language and cultural differences
and community norms.
Right
Of Access To Government Information
You should
be familiar with the following Acts regarding access to Government
information:
Freedom
of Information Act
A fundamental
principle of democracy is that the citizens be informed about their
government. FOIA ensures that the Federal
Government provides the public with requested information to the
maximum
extent possible.
FOIA does
not apply to State and local governments. These are covered by
their own laws, which vary from State to State and city to city.
All records
in a Federal agency’s possession that are not already in the public
domain are subject to FOIA.
No forms
are necessary to request information under FOIA.
Privacy
Act Of 1974
Do not
disclose private facts about an individual without permission.
While this
principle is true for most individuals, there is little recognized privacy
for public officials, famous people, and those in positions of power,
such as commanders. It is important to note that newsworthiness
can be a defense. If the media publish factual information about a person
that is newsworthy, it is not a violation of privacy, even though
it may be embarrassing to the person.
The Privacy
Act normally protects personal information such as medical records,
pay records, age, race, sex, and family background. In some cases,
media representatives may insist on obtaining information protected
by the
Privacy Act. In such cases, consult with your office of general counsel
to seek guidance. The following is a sample Privacy Act Notification
Statement.
"The Centers
for Disease Control and Prevention, an agency of the Department of
Health and Human Services, is authorized to collect this information,
including the Social Security number (if applicable), under provisions
of the Public Health Service Act, Section 30l (42 U.S.C. 241). Supplying
the information is voluntary and there is no penalty for not providing
it. The data will be used to increase understanding of disease patterns,
develop prevention and control programs, and communicate new knowledge
to the health community. Data will become part of CDC Privacy Act
System 09-20-0136, "Epidemiologic Studies and Surveillance of
Disease Problems" and may be disclosed: to appropriate State
or local public health departments and cooperating medical authorities
to deal with conditions of public health significance; to private
contractors assisting CDC in analyzing and refining records; to researchers
under certain limited circumstances to conduct further investigations;
to organizations to carry out audits and reviews on behalf of HHS;
to the Department of Justice for litigation purposes, and to a congressional
office assisting individuals in obtaining their records. An accounting
of the disclosures that have been made by CDC will be made available
to the subject individual upon request. Except for these and other
permissible disclosures expressly authorized by the Privacy Act, no
other disclosure may be made without the subject individual’s written
consent."
Law
And Public Health Agencies
Public
health authority at the State and local levels is typically exercised
by boards of health and public health agencies. The jurisdiction and
legal authority of these entities vary from State to State. The relationship
between State agencies and local public health departments within each
State is varied and complex.
All 50
States, the District of Columbia, and the territories of Guam, Puerto
Rico, American Samoa, and the U.S. Virgin Islands have a State or territorial
health agency (which we will call a State agency for brevity). Each
State health agency is directed by a health commissioner or a secretary
of health. Each State also has a chief State health officer, who is
the top public sector medical authority in the State. (The same person
may fill both positions, or the chief State health officer may answer
to the director of the State agency.)
A State
health agency is generally organized as:
- An independent
agency that is directly responsible to the Governor or a State board
of health (33 States)
- A division
within a supra-agency.
As of 1982,
24 States had boards of health. In most of these States, the chief health
officer reports to the board. In some States, the chief health officer
is a member of the board. More than 90 percent of the State boards are
appointed by the Governor. The remainder are appointed by professional
associations or by the State health agency director.
The general
responsibilities of State boards of health are policy and budget related.
For example, as the governing body of the Texas Department of Health,
the Texas Board of Health adopts goals and rules to govern the department’s
activities. The six-member board is charged with the ultimate legal
authority over most public health issues in the State.
There are
about 2,900 local health departments in the United States. They are
structured in one of the following ways:
| Structure
Type |
Explanation |
| Centralized
at the State level |
About
one-third of the States use this organizational structure, with
the State agency operating whatever local health agency units exist
within the State (1981 data). |
| Autonomous
units |
Some
local health agencies operate completely independently of the State
health agency and receive only consultation and advice from the
State. |
| Semi-centralized |
In
the majority of States, some programs are operated completely by
the State; some are shared with the local health department, and
in some, the State acts merely as an adviser to the local health
department. The extent of local health department jurisdiction also
varies within States and across the Nation. Some local health departments
serve a single city or county; others serve a group of counties,
and some serve a city-county combination. |
Approximately
73 percent of local health departments serve a jurisdiction that
has
a local board of health. Eighty-eight percent of the local boards of
health have statutory authority (under the concept of "home
rule")
to establish local health policy, fees, ordinances, and regulations.
In addition, 61 percent of local boards of health have statutory
authority
to approve the local health department’s budget.
Public
Health Laws
The following
are public health laws and related information that you should be
familiar
with:
Sources
of authority for public health laws
State governments
(and, by delegation, their various subdivisions) possess the authority
to enact and enforce public health laws under what is known as their
"police power," a broad concept that encompasses the functions
historically undertaken by governments in regulating society.
The term
"police power" is not mentioned in the Constitution of the
United States. Rather, police power is inferred from the powers traditionally
possessed by governments and exercised to protect the health, safety,
welfare, and general well being of the citizenry.
Police
power has been used to uphold a wide variety of actions by the States,
many quite broad in their reach and impact. Generally such laws will
be upheld if it can be shown that the laws are reasonable attempts to
protect and promote the public’s health, safety, and general welfare,
and that the laws are not arbitrary or capricious attempts to accomplish
such an end.
On the
State level, all governmental authority (including expansive police
power) resides with the State governments. The State governments, in
turn, can and do authorize local governmental entities to exercise governmental
authority on the local level. The establishment of local boards of health
are authorized by State laws, which establish guidelines for their operation.
Taking
of private property
The Fifth
Amendment provides that no private property shall be taken for public
use without just compensation. The Fifth Amendment prohibition applies
to both:
- Real
property, defined as land, buildings, and other real estate
- Personal
property, defined as everything subject to ownership that is not considered
"real property."
Many public
health laws prohibit, ban, or otherwise regulate the possession or use
of hazardous agents, products, and real estate. The Government does
so to protect the public’s health and safety. Such laws may substantially
interfere with use and enjoyment of property. The general rule
may be stated as follows:
Government
"takings" of private real and personal property to prevent
harm generally do not require compensation, thus underscoring the
broad authority the Constitution extends to Government as the protector
of public health and safety.
Privacy
rights
An argument
frequently made against such public health laws as immunization requirements,
fluoridation, compulsory HIV testing, and helmet and seat belt use laws,
is that such laws infringe on individual rights. Opponents of such laws
assert that they reach beyond the police powers of the States, deny
due process, and violate the Constitutional "right to privacy."
The right to privacy has been limited to intimate areas of life.
Public
health officials’ responsibilities/liabilities
Public
health authorities have broad legal authority that gives them the power
to institute a wide variety of measures to protect the public’s health
and safety.
But what
does the law say about those responsibilities? Are they discretionary
or mandatory? Can you be forced to act? Can your actions or failure
to act be the source of legal jeopardy? And what happens if your actions
result in harm? Can you be sued for damages or threatened with criminal
prosecution?
Responsibility
State statutes
that authorize public health officials to protect and enhance the public’s
health and safety outline a variety of functions. These functions are
classified as either mandatory or discretionary.
Mandatory
functions are those, which an agency must undertake by legislative mandate.
The statute leaves no room for an agency to determine whether to carry
out the function. Examples of mandatory functions include:
- Statutory
requirements to maintain vital records
- Legal
mandates to develop toxic air pollutant regulations
- Ordinances
requiring agencies to hold "open or public meetings" and
to make other information available to the public.
Discretionary
functions are defined as those involving the exercise of judgment or
discretion in connection with planning or policy-making. Discretionary
activities may include:
- Decisions
to create a waste disposal site
- Management
of natural resources
- Planning
inspection and social service policies
- Allocating
funds for inspection of nursing homes and day care facilities.
Health
departments have a legal responsibility to carry out mandatory functions,
but are allowed considerable latitude in how and when to carry out discretionary
ones.
Liability
Conventional
wisdom holds that Americans have become litigious, filing lawsuits whenever
anything goes wrong or whenever they think they could collect money
for damages. The concern over potential litigation has fallen heavily
on health care professionals, particularly those who practice medicine.
But there is a related fear that anyone with responsibility for the
well being of others may be sued if that well being is lost. Understanding
the laws of liability will put such fears into proper perspective.
Remember
that liability laws covering State and local health department agencies
and employees vary.
Model
State Emergency Health Powers Act
Laws are
vital to protect Americans from the potentially devastating impact of
terrorism and other public health emergencies. As states enhance their
preparedness for a terrorist event or other public health emergency,
they are reviewing their laws and deciding whether they have the authority
needed to make quick decisions to save lives and prevent the spread
of illness.
Individual
states have the principal legal powers to control epidemics but
have
had little experience using the disease control laws in large-scale
public health emergencies because the United States has been free
of
massive disease epidemics for many decades. Existing laws were crafted,
in many cases, to deal with the outbreaks typical of the early twentieth
century.
As part
of a broad effort to strengthen the country’s preparedness for terrorist
and other public health emergencies, CDC requested that legal experts
at Georgetown and Johns Hopkins Universities develop a draft model law
that states could use as they review their existing laws. The resulting
draft Model State Emergency Health Powers Act is designed to facilitate
and encourage communication among the various interested parties and
stakeholders about the complex issues pertaining to the use of state
emergency health powers. According to the Center for Law and the Public's
Health at Georgetown and Johns Hopkins, as of August 16, 2002, 35 states
and the District of Columbia have introduced bills or resolutions based
in whole or in part on the model law. Visit http://www.publichealthlaw.net/MSEHPA/
MSEHPA_Leg_Activity_050102.pdf to see the last status of the states'
laws.
The draft
law covers reporting of disease cases, quarantine, vaccination,
protection
of civil liberties, property issues, infectious waste disposal, control
of health care supplies, access to medical records, and effective
coordination
with other state, local, and federal agencies. The draft model law
covers vaccination and quarantine because they are critical to stopping
potentially
devastating disease outbreaks. The vital medical goal is to prevent
an infected person from infecting others. This can be done by vaccinating
people who might have been exposed to the disease (if there is a vaccine
for the disease) or by separating them from others during the incubation
period of the disease. The draft model law is an effort to find the
right balance between individual liberties and the common good.
A major
part of the process in developing this draft model act has been to
incorporate provisions that guarantee and strengthen civil liberty
protections in
state public health emergency laws. For example, the model law requires
a court order to quarantine someone—although quarantine can be
ordered without court permission if delay could pose an immediate
threat to
the public’s health. In addition, a person in quarantine would have
the legal right to a court hearing to contest the court order and
the
hearing must be held within 72 hours of receipt of the request. At
the hearing, the public health authority must show that the quarantine
is
warranted. Quarantined persons can also request a hearing regarding
treatment and the conditions of quarantine. The draft law provides
for
court-appointed legal representation for those in, or recommended for,
quarantine or isolation.
According
to the Center for Law and the Public’s Health, as of April 4, 2002,
32 states have introduced bills based in whole or part on the Model
Act.
Quarantine
The practice
of quarantine, as we know it, began during the fourteenth century
in
an effort to protect coastal cities from plague epidemics. Ships arriving
in Venice from infected ports were required to sit at anchor for
40
days before landing. This practice, called quarantine, was derived
from the Latin word quaresma, meaning 40.
When the
United States was first established, little was done to prevent the
importation of infectious diseases. Protection against imported diseases
was considered a local matter and handled by the colonies. While sporadic
attempts were made to impose quarantine requirements, it was the continued
yellow fever epidemics that led to the passage of Federal Quarantine
Legislation by Congress in 1878. This legislation, while not conflicting
with States' rights, paved the way for Federal involvement in quarantine
activities. With the arrival of cholera from abroad in 1892, the law
was reinterpreted to allow the Federal Government more authority in
imposing quarantine requirements. In 1893, another act of Congress further
clarified the Federal role in quarantine activities. Local quarantine
stations were gradually turned over to the government as local authorities
came to realize the benefits of Federal involvement. Additional facilities
were built to provide better coverage, and quarantine was nationalized.
By 1921, all quarantine stations were under Federal control. In 1944,
with codification of the Public Health Service Act, the Federal Government's
quarantine authority was clearly established for the first time.
CDC assumed
responsibility for Quarantine in 1967. The Public Health Service Act
gave the U.S. Public Health Service responsibility for preventing the
introduction, transmission, and spread of communicable diseases from
foreign countries into the United States. Under its delegated authority,
the Division of Global Migration and Quarantine is empowered to detain,
medically examine, or conditionally release individuals and wildlife
suspected of carrying a communicable disease. The list of quarantinable
diseases is contained in an Executive Order of the President and includes
cholera, diphtheria, infectious tuberculosis, plague, smallpox, yellow
fever, and viral hemorrhagic fevers, such as Marburg, Ebola and Congo-Crimean.
The speed
of travel among nations, as well as the number of travelers, has accelerated
the opportunity for the rapid dissemination of disease from one country
or continent to another. In September 1994, India reported cases of
plague for the first time in 28 years. CDC’s domestic response to the
India plague outbreak involved two simultaneous components 1) information
dissemination and education, and 2) intensified active and passive surveillance
to identify and treat suspected plague patients and their contacts.
During
the plague epidemic, crews on all commercial aircraft originating in
or continuing from India were reminded of the regulations requiring
them to notify the Quarantine Officer as the destination airport of
any ill passengers and were instructed to be especially alert for passengers
with fever, cough, or chills. Before disembarking, a quarantine officer
and physician examined passengers who reported illness to determine
if the illness warranted hospitalization and further evaluation. If
deemed not likely to have plague, the passenger was placed under surveillance
and released with instructions. If a passenger would have been considered
a patient with suspected plague, the passenger would have been placed
in isolation a the airport until transport to a predetermined hospital.
At the hospital the passenger would have been placed under respiratory
isolation. Other patients on the flight would have been informed that
they were under surveillance, according to federal quarantine regulations.
Persons identified, by proximity, to the sick passenger, would have
been provided antibiotic prophylaxis.
For this
public health response to work, many agencies contributed at the federal,
state, and local levels of public health and the Immigration and Naturalization
Service, the U.S. Customs Service, commercial airlines, medical practitioners,
hospital personnel and the public played key roles.
You will
need to be familiar with the following definitions and types of quarantine:
Definitions
and Processes
These concepts
may be critical in the response to suspected or confirmed large-scale
terrorist events. Questions about both persons who have active cases
of illness and those who may be incubating the disease and infectious
would have to be considered to protect non-exposed well persons.
The public
health response, timing, and degree of the response, would depend
on
the following aspects of the outbreak:
- Number
of cases and exposed persons
- Associated
illness and death from the disease (severity of the disease)
- Ease
and rapidity of the spread of the disease (some spread so easily
that
these disease control measures may not be feasible)
- The
degree of movement in and out of a community (how isolated the
community
may or may not be)
- Resources
needed to accomplish a separation of sick or exposed people from
well
people
- Risk
for public panic.
For individuals
who are sick, the appropriate response may be isolation (home or congregate
settings and respiratory isolation. Sick persons would need to be monitored
to detect new cases and monitor disease treatment.
For individuals
who were or may have been exposed but not exhibiting symptoms of
illness,
the appropriate response may be quarantine, isolation, and or surveillance
to detect the disease and provide appropriate treatment to help
prevent
the onset of illness (such as a drug prescription).
At the
community level, the response could follow four levels of activity.
| Community
Level Response |
| Level
1 |
- Travel
alerts and information
- Press
releases
- Interagency
partner notifications
|
| Level
2 |
- All
Level 1 activities
- Travel
advisories
- Recommendation
against elective travel
|
| Level
3 |
- Level
2 activities
- Restriction
of movement and travel (air, rail, automobiles, pedestrian)
|
| Level
4 |
- Level
3 activities
- Cordon
sanitaire
- Community-wide
interventions such as mass treatment and mass prophylaxis
|
Recently,
CDC researchers constructed a mathematical model to describe the
spread
of smallpox after a deliberate release of the virus. The model demonstrated,
based on the assumption of 100 people being initially infected and
three
people infected per infectious person, that it is theoretically possible
to completely halt the spread of smallpox by quarantine only. The
researcher
noted that the level of quarantine needed and the speed at which
public acceptance of the quarantine had to be achieved that it may
prove impossible
to enforce. The researchers concluded that a combination of both
vaccination and quarantine worked best, but still approximately 4,200
cases would
occur and it would take a year to stop the outbreak. The researchers
noted that to successfully enforce quarantine, requires political
will,
public acceptance, and group discipline.
Interstate
quarantine
Public
health law allows that whenever the Director of the Centers for Disease
Control and Prevention determines that the measures taken by health
authorities of any State or possession are insufficient to prevent the
spread of any of the communicable diseases from one State to another
State or possession, the director may take measures to prevent spread
of the diseases. Measures may include inspection, fumigation, disinfection,
sanitation, pest extermination, and destruction of animals or articles
believed to be sources of infection.
In addition,
a person who has a communicable disease in the communicable period can
be restricted from traveling from one State or possession to another
without a permit from the health officer of the State, possession, or
locality of destination.
The person
in charge of any conveyance (e.g., bus, ship, plane) engaged in interstate
traffic on which a case or suspected case of a communicable disease
develops is required, as soon as practicable, to notify the local health
authority at the next port of call, station, or stop, and to take measures
to prevent the spread of the disease as the local health authority directs.
Certain
communicable diseases invoke special requirements. The following provisions
are applicable with respect to any person who is in the communicable
period of cholera, plague, smallpox, typhus, or yellow fever, or who,
having been exposed to any such disease, is in the incubation period.
Without
a written permit of the Surgeon General or authorized representative,
the person cannot travel from one State or possession to another or
on a conveyance engaged in interstate traffic. Persons given written
permission will be required to present the permit to operators of the
conveyances.
Apprehension
and detention of persons with specific diseases for the purpose of preventing
the introduction, transmission, or spread of the following diseases:
anthrax, chancroid, cholera, dengue, diphtheria, granuloma inguinale,
infectious encephalitis, favus, gonorrhea, leprosy, lymphogranuloma
venereum, meningococcus meningitis, plague, poliomyelitis, psittacosis,
relapsing fever, ringworm of the scalp, scarlet fever, streptococcic
sore throat, smallpox, syphilis, trachoma, tuberculosis, typhoid fever,
typhus, and yellow fever.
A parent,
guardian, physician, nurse, or other such person should not transport,
procure, or furnish transportation for any minor child or ward, patient,
or other such person who is in the communicable period of a communicable
disease, except in accordance with regulatory provisions.
Separate
provisions exist for military personnel.
Foreign
quarantine
U.S. public
health law has made provisions to prevent the introduction, transmission,
and spread of communicable disease from foreign countries into the States
or possessions of the United States.
For ships
destined for a U.S. port, ship masters are required to immediately report
to the quarantine station at or nearest the port at which the ship will
arrive, the occurrence on board of any death or any ill person among
passengers or crew (including those who have disembarked or have been
removed) during the 15-day period preceding the date of expected arrival
or during the period since departure from a U.S. port (whichever period
of time is shorter).
The commander
of an aircraft destined for a U.S. airport is required to report immediately
to the quarantine station at or nearest the airport at which the aircraft
will arrive, the occurrence on board of any death or ill person among
passengers or crew.
The master
of a ship carrying 13 or more passengers must report by radio 24 hours
before arrival the number of cases (including zero) of diarrhea in
passengers and crew recorded in the ship’s medical log during the
current cruise. All cases of diarrhea that occur after the 24-hour
report must also
be reported not less than four hours before arrival.
The director
of CDC may require detention of a carrier until the completion of
the
measures necessary to prevent the introduction or spread of a communicable
disease. The director may issue a controlled-free pratique to the
carrier
stipulating measures to be met, but such issuance does not prevent
the periodic boarding of a carrier and the inspection of persons
and records
to verify that the conditions have been met for granting the pratique.
Persons,
carriers, and things
Whenever
the director of CDC has reason to believe that any arriving person is
infected with or has been exposed to any of the following communicable
diseases, the director may detain, isolate, or place the person under
surveillance and may order disinfection or disinfestation as he or she
considers necessary to prevent their introduction, transmission, or
spread: cholera or suspected cholera, diphtheria, infectious tuberculosis,
plague, suspected smallpox, yellow fever, or suspected viral hemorrhagic
fevers (e.g., Lassa, Marburg, Ebola, Congo-Crimean, and others not yet
isolated or named).
Whenever
the director has reason to believe that any arriving carrier or article
on board the carrier is or may be infected or contaminated with a communicable
disease, he or she may require detention, disinfection, disinfestation,
fumigation, or other related measures as he or she considers necessary
to prevent the introduction, transmission, or spread of communicable
diseases.
Persons:
Isolation and Surveillance
The director
of CDC may require the isolation of a person where surveillance is authorized
whenever the director considers the risk of transmission of infection
to be exceptionally serious.
State
Tort Claims Acts
Because
of the inherent unfairness of absolute sovereign and governmental immunity,
which forced injured parties to bear the costs of an accident, virtually
all States have repealed these sweeping common law principles, replacing
them with more limited immunities through State legislation known as
State tort claims acts and, in some States, by State constitutional
provision.
What remains,
at least in some jurisdictions, is that the law continues to distinguish
between the State and its political subdivisions when conferring immunities.
Similarly, in some jurisdictions the language and rationale provided
in the common law distinguishing between proprietary and governmental
functions persist to this day.
Liability
You should
become familiar with the following forms of liability:
Liability
of States and their political subdivisions
In most
if not all States and localities, government officials are, by statute,
granted immunity from lawsuits arising from the exercise of their
governmental functions. Most may be held liable for torts arising
from the exercise
of proprietary functions. State laws generally take one of two forms:
| State
Laws Concerning Liability |
Explanation |
| Overall
immunity |
Overall
immunity is granted to the State, subject to specified exceptions.
In such States, immunity is the general rule and the limited circumstances
under which the State agrees to be sued are specifically described. |
| Immunity
is the exception |
State
statutes following this model confer immunity on a limited basis
as exceptions to a comprehensive scheme permitting governmental
tort actions. In such States, the doctrine of sovereign immunity
is abolished, and immunities are restored on a limited basis
as deemed appropriate by State legislators.
|
The rules
for governmental tort immunities of counties and municipal corporations
usually take one of three forms, the first of which is the most common.
- The
State tort claims act governs the tort immunities of its counties
and municipal corporations.
- The
State tort claims act expressly excludes political subdivisions from
coverage; more limited immunities are usually provided to them under
a separate tort claims act.
- In a
small minority of States, the rules governing immunity for counties
and municipalities remain defined by common law principles.
Regardless
of the form they take, virtually all State tort claims acts:
- Retain
immunity for essentially governmental functions
- Waive
immunity for negligence of governmental officers and employees acting
within the scope of their employment
- Establish
procedures for filing claims against the government
- Limit
the amount of damages that may be recovered
- Authorize
governmental entities to purchase liability insurance.
The term
"negligence" means a failure to exercise reasonable care and
caution. The standard by which the legal system judges "reasonable
care" is often expressed as that which a "prudent" or
careful person would do.
Liability
for proprietary functions
Public
health agencies are often involved in the provision of clinical services
through public health clinics, school health programs, and the like.
In such situations, the public health clinician has a legal responsibility
to provide care that meets the same high professional standards expected
of private clinicians. Failure to perform at this level of care and
competency constitutes malpractice, that is, negligent performance by
a professional that results in harm to the patient or client.
Like clinicians
working in other public or private institutions, professionals who provide
clinical services in health departments need malpractice insurance protection,
which is usually provided by the employer (in this case, by the government).
There are
other situations in which a public health agency may act in a proprietary
role and could conceivably be sued for negligence. For example, the
agency may operate an automobile child-restraint sale or loaner program
and may worry about legal liability if a defective car seat results
in harm to the user. Although this is an unlikely event, it must be
dealt with before beginning any such program, either through insurance,
waivers, or legal counsel’s assurance of some relevant statutory immunity.
Liability
for governmental functions
What about
the public health professional’s regulatory role? Certainly harm can
result from the enforcement of public health laws. For example, a restaurant
closed while an episode of food poisoning is being investigated will
lose business, perhaps running into the tens of thousands of dollars.
A nursing home that has its license restricted or suspended will suffer
even greater damage. And any business or facility investigated by a
local or State health department may find that rumors emanating from
the investigation have driven business away, even if no problem is found
to exist.
Can owners
of these businesses sue the health department for compensation and win?
No. Virtually all States provide immunity from tort actions arising
out of the performance of essential governmental functions. In many
jurisdictions this is called "the general duty doctrine."
The doctrine says that a governmental body engaged in the inherently
governmental tasks of enforcing laws and regulations ought not to be
hampered in fulfilling its public duty by exposing it to tort liability
should its actions (or failure to act) result in injuries to members
of the public. Thus under the general duty doctrine, absent compelling
circumstances discussed later in this module, the government cannot
be held liable to private plaintiffs for the negligent exercise of its
authority.
In most
States, the general rule is that governmental entities are immune
from
suit for torts committed by their officers and employees in performing
basic governmental functions, unless liability is specifically permitted
by statute, or the function, even though essentially governmental
in nature, is ministerial rather than discretionary.
The extent
of immunity varies among States.
A governmental
entity will usually be held liable for failing to warn about hazards
when it has notice of a dangerous condition that it created or had
control over, and the danger is not readily apparent to the public.
For example, a municipality would not be held liable for failing
to
place warning signs or otherwise protect persons using public beaches
if an injury arose from natural conditions such as a strong undertow
or steep drop-off, because the decision to warn is discretionary
function. However, a city would be held liable to persons injured
while driving
in an unmarked area of a public beach where harm resulted from their
striking an underwater concrete abutment placed there by the city.
Because
the city created the condition and the danger was not readily apparent
to the public, the city has a special duty to warn divers of the
hidden
danger.
Liability
of individual health officers: qualified immunity
What about
the personal liability of individual public health officers? Injured
persons who go to the time and expense of bringing a lawsuit will often
name not only a governmental entity as a defendant but also the officers,
agents, or employees who were involved in the incident. The latter may
be sued in their official capacity as well as personally.
A suit
against an individual in his official capacity means the plaintiff is
seeking recovery from the governmental entity, which employs the defendant;
a suit against a person in his or her individual capacity means the
plaintiff is seeking recovery directly from the person. Do immunity
provisions protect them? The answer is a qualified yes.
As a general
rule, when you perform your public health duties in good faith and in
a reasonable fashion, you are not personally liable for damages that
may result from your acts. Judges understand that if you are made too
fearful of the legal consequences of your actions, you will be timid
and ineffectual in carrying out your duties—not a desirable state of
affairs. Thus, the courts have fashioned legal doctrines that afford
public health practitioners broad immunity from lawsuits.
This is
a qualified immunity, not an absolute one. It only applies under circumstances
where you are acting in good faith within the scope of your authority.
The principle would not hold in instances of gross and willful carelessness,
malicious, corrupt or criminal actions, or acts that went beyond the
authority vested in the public health agency or the scope of your employment.
Clearly you would not engage in willful carelessness of corruption through
mere inattention.
Going beyond
an agency’s appropriate authority may seem less clear cut. But in fact,
this problem would arise not from taking legitimate authority to excess,
but rather from going off into completely unauthorized or clearly invalid
areas, for example, attempting to require participation in religious
services by all nursing home residents.
Frank Grad
lists the following questions that arise in determining whether an employee
has exceeded an agency’s authority:
- Was
the employee authorized or required to do what was done?
- Was
the employee authorized to use the means that were used?
- Were
the employee’s actions based on a mere error in the exercise of discretion
or did the employee knowingly go beyond legal authority or knowingly
use improper means?
Public
health practitioners performing their duties in good faith and in a
reasonable fashion are not personally liable for damages that may result
from their acts.
Variations
on the general rule
State statutes
vary widely in the amount of protection offered to individuals. In some
jurisdictions health officials may be held liable for negligently performing
ministerial, as apposed to discretionary, acts. For example, health
officials may be personally liable for operating a motor vehicle in
a negligent manner and for failing to provide appropriate social services.
To ensure
protection from civil and criminal legal difficulties, you should
carefully
document what you do, as you do it. Then, if you later need to demonstrate
that appropriate agency procedures have been consistently followed,
your work logs and records will provide key evidence that nothing
untoward or improper occurred. Without such contemporaneous documentation,
after-the-fact
defenses become problematic.
While it
is extremely unlikely that your work will ever result in civil or criminal
legal repercussions, there are two practical lessons here:
- First
of all, adhere to the standards and ethics of your profession and
you will not run afoul of the legal system.
- Second,
maintain complete records that will allow you to demonstrate that
you in fact performed in a reasonable and defensible manner.
State and
local programs financed in whole or in part by Federal monies must attain
compliance with Federal regulations, which are often quite extensive
in scope.