I. Challenge:
A. The benefits of public health information systems, collection of data, etc.: you can detect hazards and health risks and gain information to inform the public, intervene (and evaluate existing interventions), and influence policymakers. The trade-off: individual autonomy, privacy…..public health success is due to the relationship with society: public health authorities safeguard public interests/rights, so as to be trusted. This will then make people feel comfortable enough to cooperate with public health measures and regulations.
B. With compulsory testing and screening, we run the risks of defining a class (generic/specific: which brings forth over/under-inclusive issues).
II. Mandatory Reporting of diseases and other health conditions (in the US):
A. States differ as to: what is reported, who reports, to whom the report goes, when the report is necessary.
B. HIV case reporting:
a. Public health professionals have a responsibility to protect the population and justify reporting by the ethics of collective responsibility. Doctors however have a priority to safeguard patient interests and their doctor-pt relationship.
b. To breach that confidentiality by reporting names and sensitive personal data, patients believe there will be room for discrimination, invasion of privacy, and political retributions
c. The benefit of HIV reporting: better monitoring, better allocation of resources and services, and, clinical benefit for the patient.
C. Partner Notification
a. Three distinct meanings:
1. Contact tracing: whereby the public health agencies need to identify, locate and inform the sexual partners that are at risk of infection.
2. Duty to warn: the doctor’s duty or power to inform their patients’ sexual partners
3. Right to know: common law duty of infected persons to disclose their sero- status to their partners.
D. Fourth Ammendment: gives right of individuals to be “Secure in their persons” and not subjected to “unreasonable search and seizures”
a. It is seen by the Supreme Court that collecting and analyzing biological samples is a “search”. So, the Question is, is it unreasonable?
b. Court has stated, “special needs beyond the normal need for law enforcement” will
not require warrants/probable-or-reasonable causes for the search.
III. Confinement (US constitutional standards)
A. Three types of Confinement (international application):
a. Isolation: separation for the period of communicability, of known infected persons in such places and under such condition as to prevent or limit the transmission of the infectious agent
b. Quarantine: restriction of the activities of healthy persons who have been exposed to a communicable disease, during its period of communicability, to prevent disease transmission during incubation IF the infection SHOULD occur.
c. Civil commitment: detention for the purpose of care and treatment.
B. Pre-civil Rights Era: Constitutionality of Civil Confinements
a. Essentially, it was believed that there is no liberty to harm others. However, confinements of “public necessity” and or reasonable means can be done.
b. Three general limitations:
i. Subject must actually have the infection in order to be confined: however, “Suspect conduct and association” is justifiable à social prejudice, discriminatory, stigmatization, unequal
ii. Safe & Health Environment during Confinement: people have 14th amendment liberty interests toward “freedom from bodily restraint”, “reasonable safety and care”, and provision of food, shelter, treatment, etc.
iii. Not exercised w/ racism or discrimination against a class or vulnerable group
C. Post-Civil Rights Era: Constitutionality of Civil Confinements
a. Since people are being confined for indefinite periods and for their likely “future risks/dangerousness”, the deprivation of liberties is violating a fundamental right which requires strict scrutiny.
i. Person must pose a significant risk, compelling state interest needed
ii. Well-targeted intervention is needed: not over-or-under inclusive
iii. Least restricted means
iv. Procedural due process is necessary: counsel, hearing, appeal.
a. For compulsory treatment of competent adults: must show high risk and appropriate treatment
IV. Solution?
A. In Lawrence Gostin’s book, “Public health law: Power, Duty, Restraint”, he proposes an idea in which there is maximization of privacy and maximization of use of sensitive data by public health officials when deemed necessary to the social good. First you acquire the identifiable data based off of a legitimate public health purpose. Second, you will store and use the data within the confines of the public health system. And, third, you can disclose the info w/o consent only when: to other public health professionals/doctors. Essentially, are you justified in acquiring the identifiable data? If so, are you taking the necessary privacy and security measures?
B. As we bring all these viewpoints together, it can be said that Cuba’s treatment was
undoubtedly a violation of human rights. Civil confinement should be seen only as a
last resort if it is deemed a necessity toward social interests. Furthermore, to
confine, test/screen, and marginalize subgroups of population—as “unconstitutional”
it is in an international sense of the word—the withholding (or lack thereof) of
treatment to the communicable disease in question further hinders the justification
of violating their privacy, liberties, and autonomy.
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