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Reviewing Public Health Orders

Traditional public health laws do not require the health officer to obtain a court order before acting. Instead, the propriety of public health restrictions is determined by postrestriction habeas corpus proceedings brought on behalf of the restricted individual. Although courts have recognized that public health measures may involve grave intrusion into an individual's expectation of liberty, the control of communicable diseases and unsanitary conditions has been found to outweigh the individual privacy interest. Perhaps the clearest difference between public health detentions and criminal arrests is that public health detentions are not bailable:

To grant release on bail to persons isolated and detained on a quarantine order because they have a contagious disease which makes them dangerous to others, or to the public in general, would render quarantine laws and regulations nugatory and of no avail.[115]

The court's deference to public health authority finds further expression in rulings on the appropriate standard of proof for restricting an individual's liberty. When persons detained under the public health authority petition for habeas corpus relief, the courts use a reasonable-belief standard for determining the validity of the detention or testing orders. Reasonable belief may be based on individual specific information, such as a diagnosis of tuberculosis, which may be obtained through voluntary testing of individuals at risk. In modern public health practice, statutorily required disease reports usually provide the basis for the reasonable belief that an individual is infected and should be restricted to protect the public health:

No patient can expect that if his malady is found to be of a dangerously contagious nature he can still require it to be kept secret from those to whom, if there was no disclosure, such disease would be transmitted. The information given to a physician by his patient, though confidential, must, it seems to us, be given and received subject to the qualification that if the patient's disease is found to be of a dangerous and so highly contagious or infectious a nature that it will necessarily be transmitted to others unless the danger of contagion is disclosed to them, then the physician should, in that event, if no other means of protection is possible, be privileged to make so much of a disclosure to such persons as is necessary to prevent the spread of the disease.[116]

[115]Varholy v. Sweat. 153 Fla 571, 575, 15 So 2d 267, 270 (1943).

[116]Simonsen v. Swenson. 104 Neb 224, 228, 177 NW 831, 832 (1920).

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