key: cord-318475-ixol8k2k authors: Richards, Edward P.; Rathbun, Katharine C. title: Making State Public Health Laws Work for SARS Outbreaks date: 2004-02-17 journal: Emerg Infect Dis DOI: 10.3201/eid1002.030836 sha: doc_id: 318475 cord_uid: ixol8k2k nan the case of quarantine due to disease, a judge would determine whether the state has shown that the detained person deserves quarantine. The judge must defer to public health authorities on their choice of public health strategies (8) . Public health orders get the most permissive judicial review, the rational relationship test, because they are based on objective criteria, are usually of limited duration, and are necessary to prevent imminent harm (9) . With the advent of AIDS in the 1980s, some civil libertarians argued that the old public health laws were outdated and no longer enforceable. There was no judicial support for this argument then (10) , and today's courts are even more supportive of state powers to protect the public. Nonetheless, many states rewrote their isolation and quarantine laws to provide varying levels of mandatory judicial review, in some cases requiring that a person be provided counsel and an opportunity for a trial before detention. Such proceedings take so much time and money that they make it almost impossible to impose quarantine (11) . Even public health laws rewritten in the wake of the 9/11 events often include judicial review provisions that would be unworkable in a large outbreak; persons would either be detained illegally or be released because of legal technicalities. Improperly detained persons can sue, and these lawsuits will probably not be barred by the immunity provisions in emergency public health laws. Improperly released persons will nullify the disease control plan. The best way to balance public protection with private rights is to use administrative hearings rather than judicial hearings to review quarantine and other public health orders. Administrative review is used routinely in state and federal agency proceedings, including for mental health commitments in Maryland (12). Courts have required more due process for mental health commitments than for quarantines; this difference is strong evidence that administrative review would be an acceptable alternative for public health orders. Such reviews can be appealed to the courts, but having the agency do the first review makes a factual record that allows quick and efficient judicial review. A petitioner can be required to go through an agency appeal before a habeas corpus review by the courts (13) . Persons who want to contest their isolation orders could be required to petition the decision maker doing the reviews. This petition could be to a health agency staff member or an appointed board. The health agency would present the basic information, and the petitioner could supply additional information in writing. Telephone interviews could be used to allow personal statements without the danger of in-person testimony. The decision maker would make a brief, written ruling based on predefined classifications. This ruling could be reviewed by an agency appeals board and would greatly simplify any subsequent appeal to the courts (14) . If such a process is adopted, the statutory language to implement these reviews should be kept general to allow flexibility in the face of different epidemic conditions. Such a review should also be part of the quality assurance for isolation and quarantine orders. A key part of any isolation and quarantine process for SARS would be thorough recordkeeping of all orders, whom such orders apply to, their duration, and the disease outcome in each case. There should be administrative oversight to ensure that the orders are proper and that other necessary actions are carried out, such as providing food and medical services to restricted persons. A major SARS outbreak would stretch many state and local public health laws to the breaking point. These laws should be reviewed and rewritten as necessary. Fair process can be based on sound administrative law principles that dramatically reduce the role of judicial review in isolation and quarantine orders. Dr. Richards is professor of law at the Louisiana State University Law Center, where he directs the Program in Law, Science, and Public Health. Professor Richards has a background in medical and public health science and has researched and published extensively on health and public health law. His special expertise is the administrative law basis for state and federal public health practice. Dr. Rathbun practices medicine at the Ochsner Clinic HHS/CDC legal response to SARS outbreak Bring out your dead: the great plague of yellow fever in Philadelphia in 1793 Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana The Commonwealth Fund Inc. v. Natural Resources Defense Council Mark's Baths, 130 Misc The role of the police power in 21st century public health The jurisprudence of prevention: society's right of selfdefense against dangerous individuals Outbreak of multidrugresistant tuberculosis-Texas, California, and Pennsylvania State ex rel. McBride v. Superior Court for King County, 103 Wash. 409, 174 P Foundation in Baton Rouge, Louisiana. A fellow in the American Academy of Family Physicians, she publishes and lectures on public health and bioterrorism-related issues.