Chapter 8.C.4 (or 6.C.2).  Quarantine, Civil Commitment, and Mandatory Treatment
 

Notes: Isolation and Quarantine


New Note 5.  Responding to SARS and the Risk of an Influenza Pandemic

 

Canada’s ultimately successful battle to respond to the outbreak of Sudden Acute Respiratory Syndrome (SARS) in 2003 sparked a number of important policy debates.  See, e.g., National Advisory Committee on SARS and Public Health, Learning from SARS: Renewal of Public Health in Canada (2003) (also known as the Naylor Report), available at http://www.phac-aspc.gc.ca/publicat/sars-sras/naylor/index.html  (last visited July 20, 2006). See also Lawrence O. Gostin, Ronald Bayer & Amy L. Fairchild,   Ethical and Legal Challenges Posed by Severe Acute Respiratory Syndrome Implications for the Control of Severe Infectious Disease Threats, 290 JAMA 3229 (2003). See also Xinghuo Pang, et al. Evaluation of Control Measures Implemented in the Severe Acute Respiratory Syndrome Outbreak in Beijing, 2003, 290 JAMA 3215 (2003); James M. Hughes, The SARS Response—Building and Assessing an Evidence-Based Approach to Future Global Microbial Threats, 290 JAMA 3251 (2003).

 

Recent developments with have also elevated the level of dialogue and planning regarding the ability to respond to a flu pandemic.  See Lawrence K. Altman, U.S. Issues Its First Plan for Responding to a Flu Pandemic, The New York Times, August 26, 2004, at A17, col. 1. New York Times online:

http://query.nytimes.com/gst/fullpage.html?sec=health&res=990DE4D9133EF935A1575BC0A9629C8B63 (last visited July 20, 2006).

 

The plan is available at http://www.hhs.gov/nvpo/pandemicplan/index.html (last visited July 20, 2006). Public confidence in the flu vaccination program was shaken by shortages in the “regular” flu vaccine during the fall of 2004; the shortages in the U.S. were caused by the unexpected safety-related closure of one of the U.S.’s primary flu vaccine manufacturers. See CDC, Interim Influenza Vaccination Recommendations – 2004 - 05 Influenza Season (October 5, 2004), available at:

http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5350a7.htm (last visited July 20, 2006).

 

See also an online resource for avian and pandemic flu information managed by the Department of Health and Human Services: http://www.pandemicflu.gov/ (last visited July 20, 2006).

 

Notes: Mandatory Mental Health Treatment

For recent cases dealing with mental health and involuntary commitment see In re R.F., 697 N.W.2d 311, 2005 ND 102 (2005); see also, Golub v. Giles, 814 N.E.2d 1034 (Ind. App., 2004).

Note 1. Trends in Mental Health Treatment.

For a discussion of mental health, the law and human rights, see generally Lawrence O. Gostin & Lance Gable, “The Human Rights of Persons with Mental Disabilities:  A Global Perspective on the Application of Human Rights Principles to Mental Health.” 63 Md L Rev 20 (2004).

Note 2. Clear and Convincing Evidence.

For a discussion on the clear and convincing standard of proof see Debra T. Landis, Annotation, Standard of Proof Required Under Statute Providing for Commitment of Sexual Offenders or Sexual Psychopaths, 96 A.L.R. 3d 840 (2005).

The ADA prohibits discrimination against those with disabilities who do not present a direct threat to health and safety.  For a discussion of the direct threat exception see Hargrave v. State of Vermont, 340 F.3d 27 (2d Cir. 2003).

Note 4. Civil Commitment for Substance Abuse.

For a federal policy discussion and case study report of civil commitment and managed care see http://www.mentalhealth.samhsa.gov/publications/allpubs/SMA00-3455/default.asp  (last visited July 20, 2006).

 

Several states have enacted statutes providing for civil commitment of pregnant women what have habitually or excessively used specific enumerated controlled substances. See for example Minnesota: Minn. Stat. Ann. § 626.5561 (West 2003); South Dakota: S.D. Codified Laws § 34-20A-70 (Michie 2004); and Wisconsin: Wis. Stat. Ann. § 48.193 (West 2003).

Note 6. Involuntary Treatment of Prisoners with Psychotropic Medications

For a discussion on forced medical treatment in order to stand trial, see George Annas, Forcible Medication for Courtroom Competence – The Case of Charles Sell, 350 N Engl J Med 2297 (2004); see also, State v. Evans 404 F. 3d 227 (2005).

Notes: Mandatory Treatment for Contagious Diseases

 

Note 8. Due Process

 

See also, Best v. Bellevue Hospital New York, NY, 115 Fed.Appx. 459 (2nd Cir.(N.Y.)) (petitioner alleged illegal detention based on alleged active TB infection) (case not selected for publication).

 

Note 9. Americans with Disabilities Act

 

As noted elsewhere in this update, in Tennessee v. Lane, 124 S.Ct. 1978 (2004), the Court held that Title II could be applied in cases involving a valid exercise of Congressional power to enforce the Fourteenth Amendment. The Court applied the test developed in City of Boerne v. Flores, 521 U.S. 507, to determine whether a Congressional enactment is a valid effort to enforce the Fourteen Amendment. The Title II claim was upheld in Lane because the contested state action affected the fundamental right of access to the courts.  Post-Lane case law must be monitored to determine whether and how Title II might be applied in public health cases. In the alternative, the federal Rehabilitation Act’s provisions governing recipients of federal funds might grow in importance if Lane signals sharp restrictions in the application of Title II of the ADA to cases involving state public services.