LM Otero / AP

Ebola quarantining could impinge on civil liberties

Balancing rights with public safety a tricky challenge for health officials tackling disease in Texas

Dozens of Texans came out of strict Ebola quarantining Monday after having been given the all-clear from health officials. But many more continue to be monitored for symptoms under surveillance conditions that, some legal experts warn, could violate people’s civil liberties.

The quarantine represents a significant restriction of freedoms and has prompted rights advocates to urge government officials to make every effort to uphold individuals’ rights while ensuring their safety. Failing to do so, they say, could make any outbreak worse.

In Dallas, 75 health care workers responsible for treating an Ebola-stricken Liberian man, Thomas Eric Duncan, signed documents last week drafted by state health officials, prohibiting them from taking public transportation or going to crowded places for three weeks.

“This is not a court order. It’s just an agreement,” said Philip Haigh, a spokesman for Dallas County Judge Clay Jenkins, who drafted up the legal framework under the the state's Ebola quarantined operates. “If you do get sick, you want to be in a place where contacts are low.”

The agreement, which all the health care workers signed, doesn’t list any immediate legal penalties for non-compliance, but does say that if workers don’t abide by the agreement they “may be subject to a communicable disease control order.”

But Duncan's fiancée, Louise Troh, and her family faced even more stringent restrictions. Troh, her 13 year-old son and two nephews, both adults, were compelled by court order to stay inside a four-bedroom cabin at a local Catholic conference center, The Dallas Morning News reported. They were released on Sunday. 

Under a control order, workers would face criminal charges — both misdemeanors and felonies — for violations. Troh’s family members, who had had significant contact with Duncan, received mandatory orders, Haigh said. 

But such measures are rare. To justify this kind of confinement in court, the government needs to have a compelling reason to impose such conditions, experts say.

“The government’s right to quarantine is very, very limited,” explained attorney Joel Kupferman, executive director at the New York Environmental Law and Justice project. “If you want to quarantine U.S. citizens, they should be afforded the right to see an attorney and to appeal their quarantine.”

Bringing in police or the threat of imprisonment to enforce quarantine can be unnecessary and alienating to the public, whose trust authorities need to stem the outbreak.

“Law enforcement treats sick people as potential enemies or criminals. It’s based on the assumption that they will do socially harmful things like spreading the disease,” said Jay Stanley, senior policy analyst at the American Civil Liberties Union. “What public health experts have found is that people generally want to be helped.”

Stanley cautioned that the government has a legitimate reason to impose quarantine rules as long as they’re “being used to advance public health, and not to satisfy panicky politicians.”

Haigh said officials chose to establish the mandatory order because one member had left the premises early on and because it was the most readily available legal mechanism. Under Texas law, the family could have appealed their quarantine.

There have been no reports of anyone in the U.S. being charged with a crime for violating a quarantine order over the Ebola scare. 

"Civil rights need not be abridged in times of public health emergency," Jenkins said in a phone interview, adding that he himself pushed back against members of the Dallas City Council who wanted to use emergency powers to compel health professionals to comply with mandatory quarantine orders. 

“These are hometown health care heroes. They put their lives on the line for us. We don't need to put them under orders," he said. "They never wanted to put the public at risk." 

Jenkins said that Texas state officials are working to make sure that the people under quarantine can still vote in upcoming midterm elections in November, since they can't go to a public place to cast ballots. 

The prosecutor did say that, in at least two situations, people who are not health care workers received mandatory orders after they refused to be at home when public health officials had appointments to take their temperatures. The first time, the people received a warning. The second time, they received a court order compelling them to comply. 

Jenkins said officials would take strong measures if someone sick with Ebola refused treatment and isolation from others. 

"We would do what’s necessary to get them what treatment they need to have the best chance to live and to keep the public safe," Jenkins said. "Not only will they die without medical treatment, in all likelihood, but they could infect many other people." 

And even if law enforcement had to help subdue the stricken individual, "they would always be treated as a disease victim, they’d never be treated as a criminal."

Legal recourse?

Kupferman said a correctly coordinated quarantine would compel the government to provide access to communication for those deemed to be at risk. Likewise information about their confinement, food, medical care and appropriate shelter would have to be provided. Authorities must also inform those under watch when their confinement will end.

“You can mitigate the bad effects, at least let people communicate and let them know why they’re there,” said Kupferman. “If people are quarantined, they should be given the utmost medical care.”

Under the agreement with state officials, health care workers can choose to spend their quarantine either at home or at Texas Health Presbyterian Hospital, the hospital where Duncan died. 

But when the government takes away the rights to free movement of a citizen, said Kupferman, it must ensure certain services in return. To make the quarantine legitimate, a court order issued by a judge would also be necessary.

“If they don’t do it in the right way, it can cause more public health problems,” he added, saying that if the quarantine causes citizens to suffer, it would discourage others from cooperating with authorities in the future.

Dr. George Annas, a bioethicist at Boston University, said that the greatest risk to civil liberties doesn’t come from quarantining, but from politicians who may push for a too harsh response in the belief that such a move would be popular. 

“The public are going to overreact because they’re nervous,” said Annas. “Politicians worry about how the public is going to view them, and whether the public thinks they’re not doing enough to protect them unless they literally lock people up.”

“It’s never appropriate to lock someone up in a jail because they’re sick,” Annas added. “It’s not a crime to be sick.”

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