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Ebola among us

Starr, Kristopher T. JD, MSN, RN, CEN, CPEN

doi: 10.1097/01.NURSE.0000458935.20254.b5
Department: LEGAL MATTERS
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Kristopher T. Starr is an Attorney at Law, Ferry, Joseph & Pearce, P.A., Wilmington, Del.; Nurse Manager, Wilmington Hospital Emergency Department, Christiana Care Health System, Wilmington, Del.; and a member of the Nursing2015 editorial board.

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“The single biggest threat to man's continued dominance on the planet is the virus.”—Joshua Lederberg (1925-2008)*

I TRY TO KEEP these columns current and relevant to your daily practice. Anyone who works in frontline healthcare and has been among the living in the last 3 to 5 months knows about our recent visitor to the United States, Ebola, also known as Ebola hemorrhagic fever or Ebola virus disease (EVD). This viral player has created a firestorm of nursing and medical responses, from the clinical nurse at the bedside all the way to the White House and beyond, feeding a national fear response. Where does that all fit into the world of nursing/legal topics?

Enter the term quarantine. You may have heard about the attempts of Governors Cuomo and Christie, governors of New York and New Jersey respectively, to quarantine a nurse from Maine upon her return from a medical mission in West Africa. Federal lawsuits were threatened, the White House called, and governors balked. Off to her home in Maine our fellow nurse went, where she was asked to voluntarily quarantine herself for the 3-week incubation period for Ebola. The incident leads us to consider the right of the state to restrict the activities of healthcare workers, given the specter of a public health crisis.

If you, the RN, were exposed to Ebola through a medical mission trip, direct care of a patient, or direct exposure to an infected relative, friend, or significant other, could you be involuntarily quarantined? Answer: probably yes. As a former deputy attorney general in Delaware, I helped draft certain statutory measures for appropriate due process handling of involuntarily quarantined Delawareans. Recently, as ED nurse manager, I developed EVD response guidelines for my facility's ED; these guidelines were adopted systemwide with revisions by emergency response and infection control professionals. In both worlds, the word “quarantine” has both legal and medical effect in both public health law and ED response protocols.

What does it take to enact involuntary quarantine? In Delaware, and in most states, quarantine requires the legal declaration of a public health emergency by the chief executive (governor) or his/her designee (secretary of health). Generally, most states require the governor to declare the emergency.

At that point, the 10th Amendment to the Federal Constitution (which covers powers reserved to the states) and the state's invocation of its police power (parens patriae doctrine) take hold and the rights of the individual, in the face of a declared public health emergency, can be legally restricted.

In Delaware, initial quarantine is made by public health order after a declared emergency by the governor. After temporary quarantine, the state must obtain an order from the Superior Court of Delaware in and for the county of the quarantined individual authorizing the quarantine using a “clear and convincing evidence” standard demonstrating a “significant risk” of transmitting the disease with “serious consequences” to public health. Within 24 hours of obtaining a temporary quarantine order, the state must file a petition with Superior Court for plenary or general quarantine; then a 72-hour clock starts to run for a hearing on the quarantine.1

In short, the state must obtain a judicial order confirming and maintaining the quarantine from a constitutionally appointed judge. The quarantined party is entitled to legal representation and the opportunity to rebut the state's case; a hearing on any individual's objections must be held within 10 days of filing. So, theoretically, an individual quarantined for EVD in Delaware on day 1 would definitely have access to the Courts by days 11 to 15 of the 21-day quarantine period.

I've been asked about my own opinions on the case of our intrepid Maine nurse and her quarantine. My opinion is simply that the state has the power to protect the populace. The government doesn't always act correctly or expeditiously and fear is never a good motive for action in isolation. But if a 21-day limited quarantine is enacted to protect the population and is reasonable given the clinical picture, then the state has the constitutional authority to act.

Virtually every state has a public health isolation and quarantine law.2 If the status of emergency reached a certain national crisis level, the CDC also has fairly extensive federal quarantine power pursuant to the Commerce Clause of the Federal Constitution.3

So, what's the take-home message? Simply put, as nurses, we deal with the unknown all the time. In some respect, I believe we embrace this aspect of our profession as part of our calling. That said, there are really scary and life-threatening diseases out there and, whatever our feelings, they are here now or coming soon. Fear is understandable. Constant vigilance and continuing education are needed. And know that the government, state and federal, has the legal authority and constitutional power to react to public health emergencies, even if that government action curbs our traditional sense of American individual rights.

Stay safe and keep it legal!

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REFERENCES

1. Title 20 Delaware Code Ann. Chap. 31.
2. National Conference of State Legislatures. State quarantine and isolation status. http://www.ncsl.org/research/health/state-quarantine-and-isolation-statutes.aspx.

* American microbiologist, geneticist, and Nobel laureate (1958).
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