Judy Zeprun Kalman

Senior CounselMassachusetts

Office of the Attorney General

Role of the AG in Preparing for and Responding to Public Health

Emergencies

Authority of OAG

• Represents the Commonwealth, as well as the secretary, agency, or department head who requests his appearance

• Represents the public interest• Assumes primary control over conduct of

litigation which involves the interests of the Commonwealth

• Defends tort, civil rights, suits alleging other wrongful acts by officer or state employee

• Is a primary legal advisor to the Governor

Role of AG in Preparing/Responding to Public Health Emergency

• Role of AG :– To represent the state or authorize DPH or relevant

city or town to act as a Special AAG– To give legal advice– To require agencies to perform– To set aside agency action that exceeds its authority– To coordinate courses of action among the agencies– Proactively, to assure preparedness and effective

response for public health emergency

Example of Project in which OAG acted as Legal Advisor, Coordinator, Policy Maker, Collaborator,

Educator• OAG, as legal advisor to the DPH, collaborated

with DPH to: – develop best practices for I/Q– create legal documents that could be used in a public

health emergency– educate local authorities (boards of health, town

counsel, etc.) about their powers and duty to act in a public health emergency and the legal remedies available when voluntary isolation or quarantine was rejected

– educate the Superior Court about the project

Concepts

• Working together cross-agency

• Legal Powers and Duties

• Public Policy

• Legal Terms

• Isolation/Quarantine

Legal Duty

• “If a disease dangerous to the public health exists in a town, the selectmen and board of health shall use all possible care to prevent the spread of the infection . . .” (statutory)*

• Complimentary regulatory scheme

• “If we do that” vs. “If we don’t”* State DPH has “coordinate powers”

Legal Powers and Authority

• Police powers• Statutory authority of DPH and local boards of

health• Regulatory authority of DPH and local boards of

health• Includes the authority of the DPH or local board

of health to cause sick or infected person to be removed to a hospital

Good Policy: Escalating Steps for I/Q

• Education, persuasion for voluntary compliance– Request– Instruction letter– Monitoring

• Administrative Process – Administrative Order– Instruction letter– Monitoring– Warning that non-compliance might end in court order– Opportunity to challenge by phone call

Persuasion

• Request to remain isolated/quarantined• Medical information• Contact numbers for help• Remember:

– patients and their families will need social, psychological, other support

– build links in advance– be sensitive to cultural differences– the better your relationship with the patient and family,

the less likely you’ll have to go to court

Toronto Experience

• Persuasion vs. compulsion• 2132 potential cases of SARS• 23,000 contacts• 13,291 complied• 9812 were reached after quarantine period or

weren’t reached• 27 formal quarantine orders• 1 appeal (later withdrawn)

Administrative Process

• Letter to Patient• Letter to Patient who doesn’t have in-state

residence• Information packet for persons in home

isolation• Information packet for persons in home

quarantine• (Emergency) Administrative Order

Emergency Administrative Isolation Order

• Addressed to a particular patient• Outlines diagnosis• Describes danger to public health• Describes evidence that patient did not or will not

follow request to remain at home• Orders patient under appropriate authority to

isolate• Warns that failure to comply may result in court

order• Gives contact information for public health official

and for objection to the order

Translation Notice

How will isolation order be enforced?

• Work with local law enforcement in advance

• Seek court intervention, if necessary

Legal Process

• Application for court order by board of health and/or DPH– Upon a showing of medical necessity/danger

to the public– Upon a showing of non-compliance with

request or administrative order

Legal Process: Basic Concepts

• Overview of court system – where do I go?• Definition of Legal Terms, e.g., affidavit, ex parte

TRO, application for PI, etc.• The burden of proof

– Reasonable basis to believe– Likelihood of success on the merits

• The least restrictive alternative• The duty to act

Templates

• Background information• Time line• Complaint, Request for TRO, PI, Other Relief• Affidavits re: medical treatment and evaluation

and failure to comply• Designated Facility• Motion to Impound• Warrant

Local Authorities’ Role

• To act• To notify DPH• To complete affidavits• To set up EMS, police services, designated

facility in advance• To execute warrant• To attend hearing• Deal with emergency; handle administrative or

financial matters later

The Templates

• How to use

• How to modify

Minimizing Liability

• Training

• Liability for acting

• Liability for failure to act

• Using approved documents

Group Exercise no. 1

• The Board of Health has gone to court to obtain a warrant (court order) to remove the patient from his home to the hospital. It contacts the local ambulance service to transport the patient, but the local service declines and says no EMTs will transport the patient with the dangerous, communicable disease. What should the Board of Health do?

Group Exercise no. 2

• The Board of Health gets the patient transported to the hospital but the police chief refuses to assign a patrolman outside the patient’s door, saying, “Who’s going to pay for the overtime, you?”

Take Home Points

• Connectivity: meet with other officials in your city or town!

• Get to know your city or town solicitor

• Get to know your regional health educators and coordinators

• Review documents on CD-Rom.

THANK YOU

Judy Zeprun KalmanSenior CounselMassachusetts

Office of the Attorney General

Role of the AG in Preparing for and Responding to Public Health Emergencies

Emergency Management Law 101

Questions & Discussion