Ebola: To quarantine or not to quarantine?

Tweet

Balancing individual rights with public safety has become a difficult situation for health and public officials as they attempt to tackle the Ebola virus and address the first cases that have appeared in the United States.  The fear of an outbreak has led a handful of states to take extraordinary steps, including strict, mandatory quarantines for individuals who may have been exposed to the virus.  The fight over how to respond to the Ebola virus has created tension between the states’ duty to protect the public safety and individuals’ civil liberties.

Hickox was released from quarantine and returned to her home in Aroostook County, Maine after her lawyers threatened New Jersey officials with a legal challenge to the quarantine.

The situation led to a legal battle between nurse Kaci Hickox and state officials in Maine, concerning whether she could be quarantined against her will.  On October 31, 2014,  the issue reached the Fort Kent District Court where a judge rejected a motion by the Maine Department of Health and Human Services to restrict Hickox’s movement.

After returning to the U.S. from treating Ebola patients in West Africa, Hickox was isolated in a tent at University Hospital in New Jersey.   Hickox was the first person to be subject to the mandatory quarantine that New Jersey Governor Chris Christie imposed for anyone entering the state that has worked with Ebola patients.  During quarantine, Hickox was denied access to other people and basic comforts, including a flush toilet.  She was detained under these conditions for four days, despite showing no symptoms of the disease.  Hickox was released from quarantine and returned to her home in Aroostook County, Maine after her lawyers threatened New Jersey officials with a legal challenge to the quarantine.

Hickox, who worked in Sierra Leone for Doctors Without Borders, refused to comply with a home quarantine order imposed by Maine Governor Paul LePage after returning to her home from New Jersey.  An at-home quarantine requires an individual to remain at home for twenty-one days and have a health official monitor them twice daily.  Though Hickox refused to comply with the quarantine order, she insisted that she was following the Federal Center for Disease Control and Prevention recommendation of daily monitoring for fever and other signs of the disease.

“I’m not willing to stand here and let my civil rights be violated when it isn’t science based,” Hickox said regarding her decision to violate the quarantine.

In Mayhew v. Hickox, Judge Charles C. LaVerdiere agreed that science was on the nurse’s side.  In overturning the quarantine order, he ruled that Hickox “currently does not show any symptoms of Ebola and therefore is not infectious.”  However, the judge included a limitation in his ruling that Hickox should continue daily monitoring through direct observation by the public health authority and coordinate travel with state officials.

Judge LaVerdiere also added that he is “fully aware of the misconceptions, misinformation, bad science, and bad information being spread from shore to shore in our country with respect to Ebola.  The court is fully aware that people are acting out of fear and that this fear is not entirely rational.”

The judge did not disregard the risk of this infectious disease, which can infect someone up to twenty-one days after exposure.  He reprimanded Hickox for so openly disregarding the quarantine.

“Respondent’s actions at this point, as a health-care professional, need to demonstrate her full understanding of human nature and the real fear that exists,” LaVerdiere wrote in the court ruling.  “She should guide herself accordingly.”

Throughout history, health officials have taken steps to protect the public safety by ordering large-scale quarantines and closing schools.

The Hickox case places the spotlight on the contrasting interests of an individual’s civil rights and the public’s expectation that the government will protect their health.

“Normally one can’t be locked up without suspicion of a crime or conviction,” said Eugene Kontorovich, a constitutional law scholar at Northwest University Law School in Chicago, “but because infections are catching and because they can be spread by people who are not visibly sick, the state has the right to protect society from disastrous consequences by temporarily limiting someone’s liberties.”

The issue over quarantines is not new in the United States.  Throughout history, health officials have taken steps to protect the public safety by ordering large-scale quarantines and closing schools.  In many cases, the courts have sided with the state in such instances.

Some public health experts say that mandatory quarantines could be illegal if not based on medical evidence.  Arthur Caplan, founding director of the Division of Medical Ethics at New York University’s Langone Medical Center, said that imposing a quarantine could create unnecessary fear and encourage people to hide their exposure to disease or travel history to affected areas.

“No state has made it clear how they would enforce a quarantine,” Caplan said.  “If [Hickox] leaves the house, are they going to shoot her?  Are they going to Taser her?  Is there going to be a guard at her door dressed in a moon suit?”

Both the federal government and state governments have authority to quarantine people.  The authority of the federal government to prescribe quarantine and other health measures is based on the Commerce Clause, which gives Congress exclusive authority to regulate interstate and foreign commerce.  The public health authority of the states derives from the police powers granted by their constitutions and reserved to them by the Tenth Amendment of the Constitution.  This police power can be described as the power to keep the general public safe.

To justify these types of confinement, the government has to follow constitutional due process guidelines.  This means that there has to be compelling reasons to impose such conditions and people have a right to writ of habeas corpus to petition the court as to why they are being restrained.

Supreme Court case precedent also supports the right of the government to take away liberty if it provides due process and a compelling reason for doing so.  In the 1976 case of Matthews v. Eldridge, the Court developed a balancing test to determine how much due process an individual should be granted before liberty can be taken away.  This balancing test includes consideration of the private interest that will be affected by the official action and the government’s interest.

The government has a legitimate reason to impose a quarantine as long as it is “being used to advance public health, and not to satisfy panicky politicians,” said Jay Stanley, senior policy analyst at the American Civil Liberties Union.

Law enforcement treating sick people as potential enemies or criminals is not the appropriate response.  Threat of imprisonment to enforce a quarantine can be alienating to the public, who are placing their trust in authorities at this time.

“It’s based on the assumption that they will do socially harmful things like spreading the disease,” said Stanley.

In the balance between constitutional rights and concerns about public health, individual liberties may have to be put on hold.

In North Carolina, a second Ebola virus test conducted on a patient at Duke University Hospital has come back as negative, according to the N.C. Department of Health and Human Services on November 5, 2014.  The individual developed a fever after traveling from Liberia to visit a family member in North Carolina.  The patient was quarantined, but released when the second test came back as negative for the virus.

Health officials in Alamance and Guilford counties are currently monitoring seven people who recently traveled to West Africa for possible symptoms of the virus.  These individuals are being actively monitored, but not quarantined.  The only risk is that they traveled from an affected country, according to the Alamance Health Department Director.

North Carolina’s general approach to addressing communicable diseases is found in N.C.G.S. 130A-144.  The statute grants authority to the Commission for Public Health, with implementation assistance from local health directors, to prescribe control measures designed to limit the spread of infectious diseases.  The N.C. Commission for Public Health is the public health rule-making body of the state that is authorized by the General Assembly to adopt rules to protect and promote the health of the public.  When implementing control measures that include quarantines, the Commission would need to take into consideration due process rights and whether a compelling reason exists for quarantine.

There are criminal implications for not cooperating with such control measures; failure to comply is a misdemeanor in North Carolina. It stands to reason that Ms. Hickox may have faced criminal charges for not complying with the quarantine had she been in North Carolina.  At this point, all of the individuals being monitored in the state are complying with the procedures their local departments have put in place.

The main question to consider is whether quarantine is reasonable, supported by medical evidence, and would have a benefit to the public health that exceeds the restrictions it would place on individuals’ liberty.  In the context of the Ebola crisis it appears that the government has a compelling reason to institute measures aimed at stopping the spread of the deadly disease.  In the balance between constitutional rights and concerns about public health, individual liberties may have to be put on hold.