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.
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:
Varholy v. Sweat. 153 Fla 571,
575, 15 So 2d 267, 270 (1943).
Simonsen v. Swenson. 104 Neb
224, 228, 177 NW 831, 832 (1920).
- 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.