The latest edition of The New England Journal of Medicine revisits the Andrew Speaker story in an article Legal Power and Legal Rights - Isolation and Quarantine in the Case of Drug-Resistant Tuberculosis by Wendy E. Parmet, J.D., asking important, largely unanswered legal questions with regards to diagnosed multi and extra drug resistant tuberculosis:
Speaker's case provoked a flurry of media attention and public outrage. During hearings, Representative Bennie Thompson (D-MS), chair of the House Homeland Security Committee, exclaimed, "We've dodged a bullet. When are we going to stop dodging bullets and start protecting Americans?"1 The implication was clear: tuberculosis carriers threaten the nation. Like terrorists, they must be thwarted by enhanced security measures, including the vigorous application of isolation and quarantine. Lost in the debate was the recognition of legal checks on the use of compulsory isolation and quarantine as well as the importance of such checks to protect the public health.
Although the terms are often used interchangeably, public health practice distinguishes between isolation, which applies to someone, such as Speaker, who is known to be contagious, and quarantine, which applies to not-yet-ill people who or goods that may have been exposed to a disease. The undertaking of both isolation and quarantine may be voluntary or compelled by law. Although tuberculosis is more commonly addressed by isolation than by quarantine, thousands were quarantined in their homes and other facilities in Asia and Canada during the 2003 severe acute respiratory syndrome (SARS) outbreak. The use of quarantine has also been widely discussed in connection with a possible influenza pandemic, although federal plans note that it may have limited efficacy for so highly contagious a disease.
Both the states and the federal government have the authority, in appropriate cases, to compel isolation and quarantine. The states derive their authority from their police power, the sovereign authority they retain under the Constitution. Although the federal government lacks a general police power, it has long used its authority for regulating international and interstate commerce to quarantine interstate or international travelers or commerce. Today, Section 361 of the Public Health Service Act authorizes the Department of Health and Human Services (which acts through the CDC) to apprehend, detain, and forcibly examine persons to prevent certain communicable diseases (specified by the President) from entering the country or traveling across state lines. Tuberculosis and types of influenza with pandemic potential are among the listed diseases.
Traditionally, courts have interpreted the authority of the states and the federal government broadly, giving great deference to public health officials. Still, even broad authority is not unfettered. Detained persons have a right to a court review of their detention's legality. Moreover, constitutional guarantees of equal protection and due process must be respected.
These safeguards are critical because the power to impose isolation and quarantine can be and historically often has been used in an abusive and discriminatory manner. For example, when bubonic plague struck San Francisco in 1900, the board of health imposed a quarantine drawn to include the homes of Chinese Americans but exclude the homes and businesses of white residents. A federal court found the quarantine unconstitutional. Although blatantly discriminatory measures may be unlikely today, studies of New York City's use of isolation orders for tuberculosis in the 1990s show that more than 90% of the people detained were nonwhite and more than 60% were homeless.2 Although these figures may reflect the democracy of noncompliant patients with tuberculosis in New York City at that time, the fact that the most potent public health tool was used primarily against marginalized, nonwhite persons underscores the need for legal oversight — if only so that affected communities can be assured of the absence of discrimination.
In recent decades, courts have clarified the legal rights of patients with tuberculosis who are subject to compulsory isolation. Drawing an analogy between isolation orders and civil commitment for mental illness, courts have affirmed that patients who are isolated by law have many procedural due-process rights, including the right to counsel and a hearing before an independent decision maker. States must also provide "clear and convincing" evidence that isolation is necessary to prevent a significant risk of harm to others. Most important, some courts have held that isolation must be the least restrictive alternative for preventing such a risk. If the government can protect public health without relying on involuntary detention, it must and should do so.
Many important questions remain. First, courts have not decided how long someone may be held before a hearing is offered or what procedures are necessary in the event of a mass quarantine. Courts have also not yet decided what probability of risk justifies short-term or long-term detention. Nor have they clarified what evidence is needed to determine that a person is or may be infectious or how infectious a person must be to justify isolation. Most critical, courts have not explained what must be shown to conclude that a patient is noncompliant so that detention is the least restrictive alternative. In tuberculosis cases, courts have upheld detention when a patient has failed, like Speaker, to follow medical advice. But they have not considered how forcefully that advice must be given or what, if anything, the government has to do to facilitate compliance. Thus it is unclear whether the CDC was required to provide Speaker with a safe way home in order to consider him noncompliant and requiring detention.
Another important question:
Another critical question is whether less restrictive tuberculosis-control programs must be in place before isolation can be considered the least restrictive alternative. For example, during the 1990s tuberculosis epidemic, New York City did not rely only on isolation orders; it increased funding for tuberculosis control and directly observed therapy and granted the commissioner of health the authority to require directly observed therapy — measures that researchers credit with helping to stem the epidemic.2 Courts have pointed to the failure of particular patients to comply with directly observed therapy as a justification for detention.3 This precedent raises the possibility that compulsory isolation might not be found constitutional in the absence of a directly observed therapy program.
Directly observed therapy is not, however, the only possible less restrictive alternative. During the 2003 SARS epidemic, the government of Ontario issued few compulsory quarantine orders. Instead, it relied heavily on voluntary quarantines either in homes or, for health care workers, in workplaces. In addition, the government provided social support and compensation for quarantined persons.4 Such measures respond to the concerns of affected populations and can facilitate compliance with public health advice. They can also be viewed — although they are unlikely to be required by courts — as less restrictive ways of reducing the risk of transmission.
However, in this post-9/11, post-SARS era, public health officials often feel compelled to exercise compulsory powers. Hence in 2005, the CDC published proposed regulations calling for an expanded role for isolation and quarantine without ensuring all the individual rights courts have required.5 These regulations, which are still under review by the CDC, would authorize short-term provisional quarantines without any hearing for up to 3 business days. Persons subject to nonprovisional quarantine would be entitled to a hearing, but no lawyer would be provided and there would not be an independent decision maker. Moreover, the CDC would be able to isolate people without showing that they posed a significant risk to others or that isolation was the least restrictive alternative.