Ethical and Legal Aspects of Disaster Response: Legal Preparedness

1. Ethical and Legal Aspects of Disaster Response: Legal Preparedness August, 2012 Barbara L Folb, MM, MLS, MPH Public Health Informationist Health Sciences Library System University of Pittsburgh folb@pitt.edu

2. Agenda • Definitions, background, class reading • Core elements of legal preparedness (Moulton 2003) • Associated information resources

3. Objectives • Describe the legal structure supporting disaster planning and response. • Recognize the interaction of ethics and law in disasters. • Plan a search for legal information. • Describe how key historical events such as 9/11, SARS and pandemics have shaped present approaches to disaster law.

4. Limitations • You will not be a legal researcher at the end of the class. • Librarians without law degrees can’t give legal advice. No practicing law without a license.!

5. How often do you receive requests for legal information from library patrons? • Frequently • Occasionally • Seldom • Never

6. Does your workplace have a manual or guide for emergencies/ disasters that includes legal information? • Yes • No • Not sure

7. Public health emergency preparedness definition “…public health emergency preparedness (PHEP) is the capability of the public health and health care systems, communities, and individuals, to prevent, protect against, quickly respond to, and recover from health emergencies, particularly those whose scale, timing, or unpredictability threatens to overwhelm routine capabilities. “ (Nelson 2007)

8. Public Health Legal Preparedness …a subset of public health preparedness and can be defined as attainment by a public health system (…of a community, a state, the nation, the world community) of legal benchmarks essential to the preparedness of the system. (Moulton 2003)

9. Disasters, Emergencies • Definitions situational • Good legal definition will clarify conditions that trigger actions

10. Pre-class reading • Moulton, A. D., Gottfried, R. N., Goodman, R. A., Murphy, A. M., & Rawson, R. D. (2003). What is public health legal preparedness? The Journal of Law, Medicine & Ethics : A Journal of the American Society of Law, Medicine & Ethics, 31(4), 672-683. Retrieved from http://hdl.handle.net/2027.42/71834

11. Is legal preparedness information available? A surprising finding is how rare such information resources [legal preparedness] are. With some exceptions, there appear to be few, if any, published manuals on public health emergency law for government and hospital attorneys, “bench books” for judges to brief themselves on evidentiary standards for public health search warrants and quarantine orders, or databases of extant state and municipal public health emergency statutes and regulations. (Moulton, 2003, pg 674)

12. Class Reading Question 1 • Moulton names four core elements of public health legal preparedness. Which of the following is NOT one? • Competencies • Cross-jurisdictional, cross-sectoral coordination • Ethics • Information • Laws

13. Question 1 Answer • Moulton names four core elements of public health legal preparedness. Which of the following is NOT one? C. Ethics

14. Ethics, Legal Authority Foundational to Preparedness

15. Ethics, Health Law and Disasters Goal: Balance the rights of individuals with the needs of society Challenge: No uniform belief about where the balance should be set Protect community from disease Quarantine, isolation laws Community safety Seizure of private property posing a danger Use of property • Individual liberty • Due process protections • Constitutional property rights • protects against unreasonable search and seizure • Just compensation

16. Public health Legal preparedness : Core elements

17. Core Element: Laws

18. Class Reading Question 2 According to Moulton, which of the following are considered law? • Executive orders from president or governor • Judicial rulings • Memorandum of understanding between hospitals and public health agencies • Mutual aid agreements between states • Regulations • Statutes • All of the above (A-F) • Only A, B, E, and F • Only C and D

19. Class Reading Question 2 Answer According to Moulton, which of the following are considered law? • Executive orders from president or governor • Judicial rulings • Memorandum of understanding between hospitals and public health agencies • Mutual aid agreements between states • Regulations • Statutes • All of the above (A-F)

20. Building blocks of law • Constitutions • Statutes • Regulations = Rules • Common law = court rulings

21. Federalism • Under the U.S. Constitution and Bill of Rights, states have sovereignty over matters not specifically delegated to Congress or to the President or to the federal judiciary.

22. State “Police Power” • Power to assure the health & safety of the population • Regulation of persons • Regulation of businesses, organizations, and professionals • Prevention, mitigation of dangers and nuisances • State may delegate powers to local government

23. U.S. Constitution: “Limited” federal powers • Tax and spend • General welfare • Regulating commerce Article 1, section 8 The Congress shall retain Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes

24. How might federal power to regulate interstate commerce affect health?

25. Example: State Sovereignty, Notifiable Diseases

26. Assessing public health law – 1988 State public health laws are in many cases seriously outdated. Statements of public health agency authority, responsibility, and organizational structure are inadequate to deal with contemporary problems. Procedural safeguards protecting individual rights are frequently weak or absent. (IOM, 1988)

27. Public Health Pre Anthrax Attacks • Low state and local laboratory capacity • Low access to computers, Internet • Low coordination with other agencies • Public health agencies unsure of their role • General public confused about public health’s role • Workforce not training for terrorism response (Gursky 2012)

28. Prep Law Development spurred by anthrax attacks Anthrax key event, changed federal law, spending on public health, health care preparedness

29. State Law Changes • Model State Emergency Health Powers Act • Drafted at request of the CDC • Used to evaluate existing state law • State adoption of portions of the law varied • Majority of states adopted some elements • Most common changes: • Defining of “public health emergency” • Public health emergency reporting • Isolation and quarantine • Immunity for state, private actors

30. Federal Law Changes • Document: • Timeline, Major Disaster Events and Law Developments, 1950- 2010 (in Moodle)

31. Key Health Preparedness Laws • Public Health Security and Bioterrorism Preparedness and Response Act of 2002 (June 2002) • Homeland Security Presidential Directive 8 (12/17/2003) • Homeland Security Presidential Directive 10 (4/28/2004) • Project Bioshield Act of 2004 (July 2004) http://www.hsdl.org/?collection/stratpol

32. http://healthyamericans.org/states/?stateid=PA#section=2,year=2012,code=undefinedhttp://healthyamericans.org/states/?stateid=PA#section=2,year=2012,code=undefined Impact of Federal Laws

33. International Law • WHO International Health Regulations, 2nd ed. 2005 • http://www.who.int/ihr/en/index.html • Reduce risk of the international spread of disease • Minimize impact on trade and travel

34. Current issues in preparedness law • Are quarantine, isolation laws an unneeded violation of personal rights? (Hodge 2012) • Laws allow multiple states of emergency to be declared for a single event. Does this create overlap in authorities, confusion? (Hodge 2012) • Is the legal workforce prepared to provide legal advice in real time? (Hodge 2012)

35. Current issues continued • No uniform liability protection for all responders, creates inconsistencies. (Hodge 2012) • Are state professional scope of practice laws flexible enough to address surge capacity for emergency vaccine administration? (O’Connor 2011) • How do we measure legal preparedness?

36. Core element: competencies

37. Competencies • Know what the applicable law is and can access it. • Apply the law correctly in a given situation. • Different job responsibilities require different • Skills • Levels of proficiency

38. (Jacobson 2012) “Most local public health and emergency management professionals relied on what they perceived the legal environment to be rather than on an adequate understanding of the objective legal requirements.”

39. Sources of Competency Standards • Journal articles (Gebbie 2008; Hodge 2008) • Hodge 2008 – table of competency sources • National Public Health Performance Standards • http://www.cdc.gov/nphpsp/ • State, local standards • CDC: Public Health Preparedness Capabilities: National Standards for State and Local Planning • http://www.cdc.gov/phpr/capabilities/index.htm

40. Training to support competency (1) • CDC Public Health Law Program • http://www.cdc.gov/phlp/publications/type/resources.html • CPHP Education Resource Guides • http://preparedness.asph.org/perlc/resourcereports.cfm • NACCHO. Public Health and the Law: An Emergency Preparedness Training Kit • http://www.naccho.org/topics/emergency/PHPL/

41. Training to support competency (2) • TRAIN, state, academic online learning management systems • TRAIN • https://www.train.org/DesktopShell.aspx • TRAMS • http://trams.jhsph.edu/trams/ • Table top exercises, live training

42. Core element: Coordination

43. Coordination is Multidirectional • Vertical – layers of government, local to international • Horizontal – between disciplines, organizations • Public health, health care, emergency management, law enforcement, courts, etc. • May be facilitated or hindered by laws

44. Legal Issues in Coordination • All parties must know the law • For their organization and others responding • Who is in charge, can to what, situational • Ex: TB , A. Speaker case (Fidler 2007)

45. Core element: Information

46. Reading Question 3 • According to Moulton, which of the following is true about information sources supporting legal preparedness? • They are plentiful • They are scarce • There are enough of them, but they are hard to find

47. Reading Question 3 Answer • According to Moulton, which of the following is true about information sources supporting legal preparedness? B. They are scarce

48. Information Needs • Repositories of public health law • Databases of state law • Current awareness of new law • Law “best practices” • Law practice guidelines • Manuals for attorneys • Bench books for judges (Moulton, 2003)

49. Repositories • Likely hosts • Government agencies • Public health, health law research, advocacy, training centers • Other professional interest groups in health and law • Example: Homeland Security Digital Library: Policy & Strategy • http://www.hsdl.org/?collection/stratpol

50. Evaluating Law Repositories • Are they complete? • Statutes, regulations, court cases, executive orders all apply • Are they in the right form for the purpose at hand? • Are they up to date? • Who is their audience?