April 2011 | Special Edition: Dealing with Disasters - Emergency Preparedness
Protecting Civil Liberties During Quarantine and Isolation in Public Health Emergencies
II. State Authority to Quarantine or Isolate
III. The Balance: Public Health and Safety vs. Individual Rights and Civil Liberties
Regardless of whether a state adopts legislation similar to the MSEHPA, states are required to protect civil liberties during public health emergencies16. Quarantine and isolation orders must be conducted in accordance with substantive and procedural due process, and any restrictions of civil liberties should be legal and as minimally restrictive as reasonably possible17. To this end, states should ensure that the following five threshold requirements are met: 1. the individual must pose an actual threat to the public; 2. the intervention must be reasonable and effective; 3. it must be conducted in a manner that comports with equal protection and due process; 4. individuals must be provided with safe and comfortable conditions; and 5. reasonable compensation for loss of income must be ensured18.
First, the individual must have actually been exposed to an infectious agent (for quarantine) or infected with the agent (for isolation)19, and be in the period of communicability. There is no compelling state interest in quarantining or isolating an individual that does not actually pose a public health risk20. In a situation where the individual does not pose a public health risk, the individual may use the writ of habeas corpus to challenge the legality of her or his detention, but the writ will not be available if a showing of legal cause for the detention can be made21.
Second, the intervention must be "reasonable and effective22." Public health officials must consider the gravity of the public health risk, the mode of transmission, the potential outcomes of possible containment methods, and the least restrictive means of containment. For example, a public health intervention that involves quarantining a large number of individuals suspected of being infected with influenza together could be considered overly intrusive and potentially hazardous. A mass quarantine ignores the less restrictive option of requesting that citizens voluntarily isolate themselves in their own homes, and infringes upon their autonomy and liberty interests. Additionally, quarantining individuals together may increase the virulence of a disease because of the potential for and ease of influenza transmission via aerosol droplets spread during conversations, coughing, or sneezing23. Therefore, mass quarantining for influenza might be less effective than other containment measures and could potentially increase harm. When either mass quarantine or less restrictive means, such as requiring individuals to isolate themselves at home, are utilized, the state's implementation must not be arbitrary or capricious in order to be considered reasonable24.
Third, the quarantine or isolation should be imposed in a manner that preserves the individuals' Constitutional rights to equal protection and due process25. To comply with equal protection, the intervention must be non-discriminatory26. For example, confining only Russian immigrants during a tuberculosis epidemic would be considered arbitrary because, on its face, it has little applicability to transmission avenues, and discriminatory due to the focus on nationality or alien status27.
For the state to comply with due process, quarantined or isolated individuals should be provided with adequate notice, the right to counsel, a hearing, and an appeal28. Additionally, the invasive nature of isolation or quarantine, and the potentially stigmatizing consequences, require heightened procedural protections. To this end, individuals should be provided with a full written explanation of why and how they are being subject to isolation or quarantine, including duration, location, and method they may employ in contesting the order29. In addition to a written directive, the individual should be allowed to speak with a health official, either in person or by phone, to receive an explanation of the procedures and how said procedures are the "least restrictive means," given the prognosis of the suspected disease. Not only is such notice congruent with due process, but this form of transparency increases the government's accountability and respect for the autonomy and liberty interests of the citizens the state is obligated to protect, thus enhancing public trust30.
Fourth, individuals subject to quarantine or isolation should be provided safe and comfortable conditions, including adequate food, shelter, clothing, and medical care31. When possible, the individual should be provided with the choice to isolate or quarantine him or herself within the comfort of his or her own home. When this is impractical, as it may be when the individual needs to receive medical treatment, the facility where the individual must stay should be made as comfortable and un-intrusive as possible.
Finally, an individual subject to quarantine or isolation should be provided reasonable compensation for loss of income due to her or his inability to go to work. Quarantine and isolation orders often require individuals to stay away from work to avoid infecting others. This can be problematic, especially when the individual's occupation does not allow them to work from home, or their employer does not provide paid sick leave. Thus, employee concern regarding potential job loss or reduction in pay may result in public resistance to quarantine or isolation orders32. In addition to lost wages, a stigma may attach to individuals who are quarantined or isolated if their employer or colleagues become aware of the reason for their absence from work. In some circumstances, though unlikely to succeed33, the state's restriction on an employee's ability to work may provide legal cause for damages due to interference with the employee's freedom to contract34.
Quarantine and isolation orders severely restrict an individual's liberty and should only be utilized when absolutely necessary to prevent a substantial public health threat. These five threshold requirements will help to ensure that the states respect their citizens' individual rights when upholding their duty to protect the public's health.
Sarah Pope, graduate of the University of Pittsburgh's dual degree program in law and bioethics, and certified in health law, is a Law and Policy Analyst with the University of Maryland Center for Health and Homeland Security.
Nisha Sherry is certified in public health through the National Board of Public Health Examiners, and is scheduled to graduate in May with a master's of public health from Johns Hopkins University and a law degree from the University of Maryland.
Elizabeth Webster, graduate of the University of Maryland School of Law, is a Law and Policy Analyst with the University of Maryland Center for Health and Homeland Security.