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chapter three. CONTAGIOUS DISEASES: QUARANTINE AND OTHER liberty-restricting RESPONSES

A. INTRODUCTION

This chapter begins with a series of case studies involving the use of compulsory confinement and other forms of coercion to control the spread of infectious disease. We start with an examination of governmentally-imposed restrictions on liberty in connection with active tuberculosis (sec. B), devoting a separate subsection to the general right of individuals to refuse unwanted medical treatment. We turn next to HIV/AIDS (sec. C) and then consider measures that may be necessary and appropriate in response to new diseases such as SARS (sec. D) or the “bird flu” (influenza, sec. E). Organizing the materials on this basis, we believe, is more likely to illuminate the difficulties of adapting available governmental interventions to the particular threat than would be achieved by separate discussions of each kind of governmental intervention. The final section of the chapter (sec. F) anticipates how the states and the federal government will react if and when the nation is required to respond to some large-scale, rapidly moving disease outbreak, arising either from a bioterrorist event or a naturally-spreading epidemic. This subject is dealt with here in the context of government compulsory action, but is taken up as a case study for all types of public health preparation and responses for new epidemics and terrorist attacks in chapter 8 as a way to integrate the entire text.

Two sets of thematic issues are developed in the case studies and the exploration of emergency responses: (1) the importance of understanding the nature and etiology of the disease, particularly the manner and speed with which it is spread and its morbidity and mortality, in evaluating the appropriateness and effectiveness of any use of isolation or quarantine; (2) the implications of applying due process and other constitutional principles in the individually-oriented manner that has characterized judicial application of these constitutional constraints on government action in the past. These themes bracket the range of possible public health responses: On the one hand, modern therapeutic techniques may allow for the control of the spread of disease with minimal supervision of people who are potentially contagious; on the other, SARS, the bird flu, or some other as yet unidentified biological threat may require the type of draconian responses that most Americans have never witnessed in their life time. Indeed, there are serious questions as to whether the nation’s public health infrastructure, its legal system (as it operated traditionally), and even its basic means for maintaining social order are sufficiently prepared for some of the worst-case scenarios that must at least be considered if not anticipated.


Sidebar: A Note on Terminology

The terminology used in reference to contagious diseases is sometimes imprecise, but some distinctions can be important. The following summary attempts to clarify commonly used terms.


Infectious, Contagious and Communicable Diseases. Many diseases are infectious, but not all of these are contagious. An infectious disease is any disease that can be transmitted to a human being by means of a virus, bacterium or parasite, which infects the person. A contagious disease is an infectious disease that can be transmitted from one person to another. Many statutes use the term “communicable” as a synonym for contagious, to emphasize person-to-person transmissibility and, by implication, to distinguish other kinds of infectious diseases.
Quarantine and Isolation. The terms quarantine and isolation are sometimes used interchangeably in common parlance, and indeed both are aimed at preventing transmission of contagious disease. Statutes and judicial opinions often use quarantine as a generic term for both. Scholars and researchers often distinguish between the two, however.

Generally, isolation means keeping a person known to have a contagious disease separate (isolated) from other people -- usually in a room in hospital or other medical facility -- in order to prevent transmission. Isolation is now part of standard medical procedure for anyone with a serious contagious disease in the hospital, and is typically accepted voluntarily by patients as part of their treatment. When patients do not accept voluntary isolation, compulsory isolation (confinement) may be sought; this requires judicial approval. The circumstances in which it is appropriate are limited, requiring (1) a serious contagious disease that (2) can be spread through casual contact, and (3) the transmission of which cannot readily be prevented voluntarily -- either because the patient is unwilling or unable to avoid the risks of infecting others, or because he actually seeks to do so.

Quarantine, a broader intervention, describes steps that restrict the movement or activities of well persons who may have been exposed to contagious disease and thus present the risk of transmitting it further; it may include sealing off houses or geographic areas thought to harbor such a disease. (Of course, to the extent that quarantine confines some persons who are ill with some who are not, it constitutes a kind of “quasi”-isolation of the former, but one which may well be counterproductive. Quarantine typically keeps a person wherever she may be at the time the restriction is imposed, which will often (but not necessarily) be at home.
Outbreaks, Epidemics, and Pandemics. An outbreak of disease is a sudden increase in the number of cases of a disease beyond what is normally expected, ordinarily in a particular locality. An epidemic is a broader outbreak in a larger geographic area. However, some epidemiologists treat any outbreak as equivalent to an epidemic. A pandemic is an epidemic that spreads to several countries. How many cases of any specific disease can be expected under normal circumstances varies from country to country. In many countries, especially in the developing world, certain diseases (such as malaria) remain constantly in the population and are called endemic. Michael Gregg, ed., Field Epidemiology (2002). In the United States, diseases like malaria, poliomyelitis, measles, rabies or plague are normally so rare that any increase in the number of cases warrants an investigation to find and eliminate the cause.

B. CASE STUDY: TUBERCULOSIS

The materials in subsection 1 focus on tuberculosis. In doing so, they introduce a number of legal doctrines that arise in a broad range of other public health problems as well; for that reason they are lengthier than most of the other sections of this chapter. Subsection 2 explores the distinctive right to refuse medical care, which similarly can arise in (but is not unique to) tuberculosis control.

As you read later sections of this chapter, think about the cross-cutting issues first explored here.

1. Contagion, Confinement, Class, and the Constitution

GreenE v. Edwards

164 W. Va. 326, 263 S.E.2d 661 (1980)



PER CURIAM:
* * *
William Arthur Greene, the relator in this original habeas corpus proceeding, is involuntarily confined in Pinecrest Hospital under an order of the Circuit Court of McDowell County entered pursuant to the terms of the West Virginia Tuberculosis Control Act, W. Va. Code, 26-5A-1, et seq. He alleges, among other points, that the Tuberculosis Control Act does not afford procedural due process because: (1) it fails to guarantee the alleged tubercular person the right to counsel; (2) it fails to insure that he may cross-examine, confront and present witnesses; and (3) it fails to require that he be committed only upon clear, cogent and convincing proof. We agree.
A petition alleging that Mr. Greene was suffering from active communicable tuberculosis was filed with the Circuit Court of McDowell County on October 3, 1979. After receiving the petition, the court, in accordance with the terms of [the state law] fixed a hearing in the matter for October 10, 1979. The court also caused a copy of the petition and a notice of the hearing to be served upon Mr. Greene. The papers served did not notify Mr. Greene that he was entitled to be represented by counsel at the hearing.

After commencement of the October 10, 1979 hearing, the court, upon learning that Mr. Greene was not represented, appointed an attorney for him. The court then, without taking a recess so that the relator and his attorney could consult privately, proceeded to take evidence and to order Mr. Greene's commitment.
Section 26-5A-5, the statute under which the commitment proceedings in this case were conducted, provides in part: "If such practicing physician, public health officer, or chief medical officer having under observation or care any person who is suffering from tuberculosis in a communicable stage is of the opinion that the environmental conditions of such person are not suitable for proper isolation or control by any type of local quarantine as prescribed by the state health department, and that such person is unable or unwilling to conduct himself and to live in such a manner as not to expose members of his family or household or other persons with whom he may be associated to danger of infection, he shall report the facts to the department of health which shall forthwith investigate or have investigated the circumstances alleged. If it shall find that any such person's physical condition is a health menace to others, the department of health shall petition the circuit court of the county in which such person resides, or the judge thereof in vacation, alleging that such person is afflicted with communicable tuberculosis and that such person's physical condition is a health menace to others, and requesting an order of the court committing such person to one of the state tuberculosis institutions. Upon receiving the petition, the court shall fix a date for hearing thereof and notice of such petition and the time and place for hearing thereof shall be served personally, at least seven days before the hearing, upon the person who is afflicted with tuberculosis and alleged to be dangerous to the health of others. If, upon such hearing, it shall appear that the complaint of the department of health is well founded, that such person is afflicted with communicable tuberculosis, and that such person is a source of danger to others, the court shall commit the individual to an institution maintained for the care and treatment of persons afflicted with tuberculosis . . . "

It is evident from an examination of this statute that its purpose is to prevent a person suffering from active communicable tuberculosis from becoming a danger to others. A like rationale underlies our statute governing the involuntary commitment of a mentally ill person . . . .
In Hawks v. Lazaro, we examined the procedural safeguards which must be extended to persons charged under our statute governing the involuntary hospitalization of the mentally ill. We noted that Article 3, Section 10 of the West Virginia Constitution and the Fifth Amendment to the United States Constitution provide that no person shall be deprived of life, liberty, or property without due process of law; we stated: "This Court recognized in [an earlier case] that, 'liberty, full and complete liberty, is a right of the very highest nature. It stands next in order to life itself. The Constitution guarantees and safeguards it. An adjudication of insanity is a partial deprivation of it.'”

We concluded that due process required that persons charged under [the state civil commitment law] must be afforded: (1) an adequate written notice detailing the grounds and underlying facts on which commitment is sought; (2) the right to counsel; (3) the right to be present, cross-examine, confront and present witnesses; (4) the standard of proof to warrant commitment to be by clear, cogent and convincing evidence; and (5) the right to a verbatim transcript of the proceeding for purposes of appeal....

Because the Tuberculosis Control Act and the Act for the Involuntary Hospitalization of the Mentally Ill have like rationales, and because involuntary commitment for having communicable tuberculosis impinges upon the right to "liberty, full and complete liberty" no less than involuntary commitment for being mentally ill, we conclude that the procedural safeguards set forth in Hawks v. Lazaro, supra, must, and do, extend to persons charged under Section 26-5A-5. . . .

We noted in [Hawks] that where counsel is to be appointed in proceedings for the involuntary hospitalization of the mentally ill, the law contemplates representation of the individual by the appointed guardian in the most zealous, adversary fashion consistent with the Code of Professional Responsibility. Since this decision, we have concluded that appointment of counsel immediately prior to a trial in a criminal case is impermissible since it denies the defendant effective assistance of counsel. It is obvious that timely appointment and reasonable opportunity for adequate preparation are prerequisites for fulfillment of appointed counsel's constitutionally assigned role in representing persons charged with having communicable tuberculosis.
In the case before us, counsel was not appointed for Mr. Greene until after the commencement of the commitment hearing. Under the circumstances, counsel could not have been properly prepared to defend Mr. Greene. For this reason, the relator's writ must be awarded and he must be accorded a new hearing.
. . . .
For the reasons stated above, the writ of habeas corpus is awarded, and the relator is ordered discharged, but such discharge is hereby delayed for a period of thirty days during which time the State may entertain further proceedings to be conducted in accordance with the principles expressed herein.

* * *


City of Newark v. J.S.

279 N.J. Super. 178, 652 A.2d 265 (1993)

Goldman, J.
* * *

The defendant, J.S., is a 40-year-old African-American male suffering from TB and HIV disease. Hospital authorities requested that Newark intervene when J.S. sought to leave the hospital against medical advice. J.S. was found dressed in street clothes, sitting in the hospital lobby. Once he wandered to the pediatrics ward. He had a prior history of disappearances and of releases against medical advice, only to return via the emergency room when his health deteriorated. Allegedly, J.S. failed to follow proper infection control guidelines or take proper medication when in the hospital and failed to complete treatment regimens following his release. In March of 1993 J.S. had been discharged and deposited in a taxicab, which was given the address of a shelter to which he was to be driven. J.S. was given an appointment at a TB clinic a bus trip away from the shelter. J.S.'s Supplemental Security Income check was being delivered to another hospital, so he had no money. He did not keep his TB clinic appointment and was labeled as "non-compliant."

A sputum sample confirmed that J.S. had active TB. TB is a communicable disease caused by a bacteria or bacilli complex, mycobacterium (M.) tuberculosis. One of the oldest diseases known to affect humans, it was once known as consumption or the great "white plague" because it killed so many people. Human infection with M. tuberculosis was a leading cause of death until anti-tuberculous drugs were introduced in the 1940s. While it can affect other parts of the body, such as lymph nodes, bones, joints, genital organs, kidneys, and skin, it most often attacks the lungs. It is transmitted by a person with what is called active TB by airborne droplets projected by coughing or sneezing. When the organism is inhaled into the lungs of another, TB infection can result. Usually this happens only after close and prolonged contact with a person with active TB. Most of those who become infected do not manifest any symptoms because the body mounts an appropriate immune response to bring the infection under control; however, those infected display a positive tuberculin skin test. The infection (sometimes called latent TB) can continue for a lifetime, and infected persons remain at risk for developing active TB if their immune systems become impaired.
Typical symptoms of active TB include fatigue, loss of weight and appetite, weakness, chest pain, night sweats, fever, and persistent cough. Sputum is often streaked with blood; sometimes massive hemorrhages occur if TB destroys enough lung tissue. Fluid may collect in the pleural cavity. Gradual deterioration occurs. If active TB is not treated, death is common.

Only persons with active TB are contagious. That active state is usually easily treated through drugs. Typically a short medication protocol will induce a remission and allow a return to daily activities with safety. A failure to continue with medication may lead to a relapse and the development of MDR-TB (multiple drug resistant TB), a condition in which the TB bacilli do not respond to at least two (isoniazid and rifampin) of the primary treatments, so that the active state is not easily cured and contagiousness continues for longer periods.

Death often results because it takes time to grow cultures and to determine the drugs to which the organism is sensitive. By the time that discovery is made, it may be too late, particularly for a person whose immune system has been compromised by a co-morbidity such as HIV disease. For that reason a wide range of drugs, currently four or five, is tried initially while the cultures are grown and sensitivities detected, particularly if MDR-TB is suspected. Once sensitivities are discovered, medication can be adjusted so that ineffective drugs are eliminated and at least two effective drugs are always used. Medical treatment protocols have been established by the United States Centers for Disease Control and Prevention (CDC) and the American Thoracic Society. These protocols are being used for J.S. as they are for all patients under the supervision of New Jersey's Tuberculosis Control Program.
Active TB of the lungs is considered contagious and requires immediate medical treatment, involving taking several drugs. Usually, after only a few days of treatment, infectiousness is reduced markedly. After two to four weeks of treatment, most people are no longer contagious and cannot transmit TB to others even if they cough or sneeze while living in close quarters. Usually exposure over a prolonged time is required, and less than thirty per cent (30%) of family members living closely with an infected person and unprotected by prophylactic drugs will become infected by the patient with active TB. On the other hand, transmission has been known to occur with as little as a single two-hour exposure to coughing, sneezing, etc., of a person with active TB. To cure TB, however, continued therapy for six to twelve months may be required. Failure to complete the entire course of therapy risks a relapse and the development of MDR-TB.

MDR-TB results when only some TB bacilli are destroyed and the surviving bacilli develop a resistance to standard drugs and thus become more difficult to destroy. This resistance may involve several drugs and directly results from a patient's failure to complete therapy. There have been no reports of TDR-TB (totally drug resistant TB) in New Jersey, so J.S. can be cured if effective drugs are found in time.

TB is more serious in persons with impaired immune systems, which can result from poor health, chronic abuse of alcohol or drugs, old age, chemotherapy for cancer, or HIV infection. Such persons are more likely to develop active TB if they already harbor the TB bacilli. By way of example, ninety per cent of persons with latent TB (these persons are neither sick nor contagious) and with an intact immune system will never develop active TB during their entire lives. On the other hand persons with HIV disease with latent TB will develop active TB at the rate of eight per cent per year.
The human immunodeficiency virus is the cause of acquired immune deficiency syndrome (AIDS). HIV infection weakens the body's natural ability to fight disease. As the immune system deteriorates, those infected with HIV may become clinically ill with many serious illnesses. These are called opportunistic diseases and include pneumonia, some forms of cancer, fungal and parasitic diseases, certain viral diseases, direct damage to the nervous system, and TB. Persons infected with HIV are at much greater risk of developing active TB if they have latent TB. Once a person with HIV disease develops one of these opportunistic diseases, that person is classified as having AIDS.

New Jersey's statutory scheme for dealing with TB dates from 1912 when the predecessor to N.J.S.A. 30:9-57 was first adopted. Only minor amendments have been made since 1917. [That statute now provides] "A person with communicable tuberculosis who fails to obey the rules or regulations promulgated . . . by the State Department of Health for the care of tubercular persons and for the prevention of the spread of tuberculosis, or who is an actual menace to the community or to members of his household, may be committed to a hospital or institution, designated by the State Commissioner of Health with the approval of the Commissioner of Human Services for the care and custody of such person or persons by the Superior Court, upon proof of service upon him of the rules and regulations and proof of violation thereafter, or upon proof by the health officer of the municipality in which the person resides, or by the State Commissioner of Health or his authorized representative, that he is suffering from tuberculosis, and is an actual menace to the community, or to members of his household. Two days' notice of the time and place of hearing shall in all cases be served upon the person to be committed. Proof of such service shall be made at the hearing. The court may also make such order for the payment for care and treatment as may be proper. The superintendent or person in charge of said hospital or institution to which such person has been committed shall detain said person until the State Commissioner of Health shall be satisfied that the person has recovered to the extent that he will not be a menace to the community or to members of his household or that the person will so conduct himself that he will not constitute such a menace."

This law allows me to enter an order committing a person to a hospital if he or she is "suffering from" TB and "is an actual menace to the community." Notice of the hearing is required and was provided. Neither the statute nor the implementing regulations, provides any guidance on the procedures to follow when such applications are made, nor what standards are to be used in issuing such orders. There is no case law in New Jersey providing guidance on these and many other related issues.
The regulatory schemes in other jurisdictions vary widely. There are older schemes like that in New Jersey which provide little or no guidance. There are those that provide detailed procedural details to guarantee due process while still allowing detention, isolation, quarantine, or confinement in the most extreme cases.
. . . .
Newark's attempt to protect the health of its citizenry is an archetypical expression of police power. [citation to Jacobson v. Massachusetts]. The claim of "disease" in a domestic setting has the same kind of power as the claim of "national security" in matters relating to foreign policy. Both claims are very powerful arguments for executive action. Both claims are among those least likely to be questioned by any other branch of government and therefore subject to abuse. The potential abuse is of special concern when the other interest involved is the confinement of a human being who has committed no crime except to be sick.

[As the Supreme Court has explained], [t]he Fourteenth Amendment requires "that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." The parameters of due process require an analysis of both the individual and governmental interests involved and the consequences and avoidability of the risks of error and abuse. Here the clash of competing interests is at its peak. Hardly any state interest is higher than protecting its citizenry from disease. Hardly any individual interest is higher than the liberty interest of being free from confinement. The consequences of error and abuse are grave for both the state and the individual.

The United States Supreme Court has recognized that "civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." [citation to Addington v. Texas] A person has the right to notice, counsel, and must be afforded the opportunity to present opposing evidence and argument, and to cross examine witnesses. . . . Illness alone cannot be the basis for confinement. [citation to O’Connor v. Donaldson] To justify confinement it must be shown that the person is likely to pose a danger to self or to others. The proofs must show that there is a "substantial risk of dangerous conduct within the foreseeable future." These proofs must be shown by clear and convincing evidence. The terms of confinement must minimize the infringements on liberty and enhance autonomy. Periodic reviews are required. Lesser forms of restraint must be used when they would suffice to fulfill the government interests.
. . .[A] court must satisfy itself that there were no less restrictive alternatives available to the “drastic curtailment” of rights inherent in the civil confinement of a person. . . .
Even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose.
[The court then discusses Greene, supra in these materials.]

[The New Jersey statute] provides a comprehensive set of procedures and standards reflecting modern ideas of mental health treatment and modern concepts of constitutional law.

Some provisions establish procedures to enhance fairness and to reduce the risks of error and abuse. Persons whose confinement is sought must be provided counsel. Such persons are entitled to adequate notice of the hearing and discovery before the hearing. The hearing must be held expeditiously to avoid unnecessary confinement. The hearing must be held in camera if requested to protect privacy interests. Prior to the hearing an independent examination paid for by the committing authority must be provided upon request. The person sought to be confined has the right to be present, to cross-examine witnesses and to present testimony. The hearing must be on the record. Evidence must be under oath. Periodic court reviews are mandated. All proofs must be shown by clear and convincing evidence.

There are additional requirements. Illness alone cannot be a basis for involuntary commitment. Persons may not be confined merely because they present a risk of future conduct which is socially undesirable. A court must find that the risk of infliction of serious bodily injury upon another is probable in the reasonably foreseeable future. History, actual conduct and recent behaviors must be considered. Dangerous conduct is not the same as criminal conduct. Dangerous conduct involves not merely violations of social norms but significant injury to persons or substantial destruction of property. The evaluation of the risk involves considering the likelihood of dangerous conduct, the seriousness of the harm that would ensue if such conduct took place, and its probability within the reasonably foreseeable future. A person's past conduct is important evidence of future conduct. If a person is only dangerous with regard to certain individuals, the likelihood of contact with such individuals must be taken into account.
. . . [M]any commentators have suggested that the most apt analogy for commitments for medical reasons is the model of civil commitments for mental illness. This was the analogy seized upon by the West Virginia Supreme Court in Greene. Professor George J. Annas recently similarly referred to the problem of TB:
The closest legal analogy is provided by court cases

that have reviewed the constitutionality of state

statutes permitting the involuntary commitment of

mental patients on the basis that they have a disease



that causes them to be dangerous.

...The constitutional concept of due process is designed to prevent irrational discrimination by ensuring a forum that can hear opposing perspectives and by insisting that distinctions are rationally based. The decisive consideration where personal liberty is involved is that each individual's fate must be adjudged on the facts of his own case, not on the general characteristics of a "class" to which he may be assigned.

Thus, it becomes possible to reconcile public health concerns, constitutional requirements, [and] civil liberties . . . simultaneously. Good public health practice considers human rights so there is no conflict. Since coercion is a difficult and expensive means to enforce behaviors, voluntary compliance is the public health goal. Compliance is more likely when authorities demonstrate sensitivity to human rights.
That these interests are reconcilable does not mean that any one case will be easy to reconcile. Any individualized balancing process is a challenge. But it does mean that the principles by which that process is governed can be made clear and without conflict or contradiction. Moreover, to the extent that current laws regarding the commitment of those with TB are so ancient that they fail to meet modern standards of due process . . . it is the responsibility of our courts to ensure that there are procedures to ensure the rights of individuals whose proposed confinement invokes the judicial process. There is no need to declare the New Jersey TB control statute unconstitutional so long as it is interpreted to be consistent with the Constitution. . . . It must be remembered that this statute was first enacted in 1912, yet it had provisions requiring notice and a judicial hearing. The statute required proof that the person be "an actual menace to the community or to members of his household." The Legislature intended to permit the confinement of someone with TB but only under circumstances consistent with due process. Many of the rights we now recognize were unheard of in 1912. . . . Therefore I construe N.J.S.A. 30:9-57 so as to include those rights necessitated by contemporary standards of due process . . . .

The first step of the individualized analysis required here is to define precisely what Newark seeks. During the active phase of TB, isolation of J.S., as opposed to confinement or imprisonment, is what is required. If J.S. lived in a college dormitory with other roommates, different quarters would have to be found for him. If J.S. lived in a private home and could be given a private bedroom or others in the household could be given prophylactic antibiotic therapy, confinement to his own home might be appropriate. J.S. is homeless, and a shelter where he would risk infecting others, including those with impaired immune systems, would probably be the worst place for him to stay. Because active TB can be serious and can be potentially contagious by repeated contact, there are few options for the homeless with active TB. As Professor Annas said:

Although these safeguards [constitutional rights] may seem

impressive, in fact the only issues likely to concern a

judge in a tuberculosis commitment proceeding are two factual

ones: Does the person have active tuberculosis, and does

the person present a danger of spreading it to others?

Since it is unlikely that any case will be brought by

public health officials when the diagnosis is in doubt,

the primary issues will be the danger the patient

presents to others and the existence of less restrictive

alternatives to confinement that might protect the public

equally well.

I find that the answers to the questions posed by Professor Annas have been provided by Newark and have been established by clear and convincing evidence. There is no question but that J.S. has active TB. There is no question but that he poses a risk to others who may be in contact with him, particularly in close quarters. Because he is homeless, there is no suggestion of any other place he could stay that would be less restrictive than a hospital.


The hearing I conducted was designed to comport to all the requirements of due process and with all the requirements of a commitment hearing under [state law].

I find that J.S. presents a significant risk to others unless isolated. Hospital confinement is the least restrictive mode of isolation proposed to me. The only request at this time is that J.S. be confined until he has shown three negative sputum tests demonstrating that his TB is no longer active. This is narrow, limited, and very reasonable, but because the time period for treatment is indefinite, I will initially set an initial court review to be held in three weeks . . . . unless J.S. has earlier been determined to have gone into remission from active TB. In that event J.S. will be released immediately unless Newark seeks confinement for another reason.

. . . Newark will have the burden of proving the need for further confinement; however, unless there is a change in condition, I will consider the evidence presented . . . along with whatever updates may be necessary. . . . If there is no change, then the current order will likely continue. Obviously J.S. will also have the opportunity to present evidence; however, discovery shall be provided by each side to the other and to me at least one week in advance of the hearing date.

In the interim I will utilize the well-established procedures New Jersey has in place for civil commitments of the mentally ill. Although some procedures may not apply to the confinement of those with contagious diseases like TB, until and unless a more specific law is enacted, the only available and constitutional mechanism is to use these tested mental health statutes, court rules, and the case law thereunder. . . .
Newark also wanted J.S. ordered to provide sputum samples and take his medication as prescribed. The testimony was that a forced sputum sample requires a bronchoscopy, a procedure involving sedation and requiring separate informed consent because of its risks. No facts were shown to justify such a diagnostic procedure where it might cause harm to J.S. As to continued treatment, testimony showed that the medications were quite toxic, dangerous, and some required painful intramuscular administration. J.S. is being asked to take many pills causing numerous side effects, including nausea and pain. The efficacy of the drugs will be unknown until receipt of sensitivity reports.
These facts cannot justify a remedy as broad as Newark seeks. J.S. has the right to refuse treatment even if this is medically unwise. . . . He must remain isolated until he is no longer contagious. Contagiousness cannot be assessed unless he gives sputum samples. While he can refuse to provide sputum samples and refuse bronchoscopy, his release from isolation may be delayed, as he will be unable to satisfy the conditions of release. The same is true with his refusal to take medication. If he refuses, he may not get better. If J.S. continues to suffer from active TB, he will be unable to satisfy the conditions of release.

On the other hand if J.S. cooperates with his caregivers, provides sputum samples, and takes his medication willingly, then upon his improvement, Newark will have a difficult time proving that he needs confinement because he is not cooperative. His in-hospital conduct will go a long way towards demonstrating his ability to follow medical therapy once released and will be considered if after his active TB is cured, J.S.'s confinement is sought because his alleged failure to follow continued therapy will make him a future risk. I would then have to consider an order . . . which would simply require J.S. to take his medication.

* * *




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