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TREY DELLINGER — Do officials have power to prevent spread of Ebola?

Trey Dellinger

Trey Dellinger

Several Ebola cases have recently been confirmed in the United States. Several persons who were later confirmed to have Ebola traveled freely to and within the United States, including by air and other forms of mass transit, before being admitted for treatment. Maine authorities failed at attempting to quarantine a nurse returning from a West African Ebola relief mission. These events have left many wondering what power and responsibilities Mississippi authorities have to control the spread of Ebola, should a case ever be found or suspected here.

Mississippi Code § 41-23-5 provides broad quarantine powers to the State Department of Health, empowering it “to establish, maintain and enforce isolation and quarantine, and in pursuance thereof, to exercise such physical control over property and individuals as the department may find necessary for the protection of the public health. The State Department of Health is further authorized and empowered to require the temporary detainment of individuals for disease control purposes based upon violation of any order of the State Health Officer.”  The statute further gives department investigators general arrest powers, and directs all other law enforcement officers to assist in the enforcement of quarantine and isolation orders of the State Health Officer.

Mississippi Department of Health rules provide that it is the duty of the local health department to impose restrictions on persons with a communicable disease, including contacts of persons with a communicable disease.  Where a Class 1 viral hemorrhagic fever like Ebola is involved, Health Department rules provide that the local health officer shall, within 24 hours of first knowledge or suspicion, conduct an investigation and provide reasonable disease control measures to minimize the danger of dissemination of the disease. Health Department rules further empower the local health officer to isolate any person suspected of suffering from a communicable disease (including Ebola).  This power to isolate also extends to any person who has had contact with a person suspected of suffering from Ebola.  If the disease sufferer or contact refuses to submit to isolation, the local health officer is required to prosecute an action at law to compel isolation.

Further, under Mississippi Department of Health rules, physicians, pathologists, nurse practitioners, coroners, and lab directors are required to report any Ebola case – and even a suspected Ebola case – to the Mississippi Department of Health within 24 hours of the first knowledge or suspicion.  Failure to report under this rule is a crime.

Interestingly, Mississippi Department of Health rules also require public and private school superintendents, grocers or restaurateurs, who “know or suspect” that one of their students, employees or customers has a disease “transmissible under the conditions prevailing in that institution,” shall exclude the affected person from their school or business until the affected person has been cleared by the local health officer as being non-infectious. Again, failure to do so is a crime.  Whether Ebola would constitute a disease “transmissible under the conditions prevailing in that institution” would likely depend on the degree of physical contact involved and the stage of the disease.  It should be noted that even a suspicion that the affected person is contagious is sufficient to trigger the duty to exclude.

Of course, each of these Mississippi statutes and rules is subject to due process limitations under the United States Constitution.  The United States Supreme Court has held that States, in the exercise of their traditional police powers, may confine individuals to prevent the spread of communicable disease.  However, that court has also recognized a constitutionally protected right to travel.  Accordingly, isolation or quarantine orders that are found to be arbitrary, oppressive and unreasonable likely would not survive constitutional challenge.

 

» Trey C. Dellinger, an attorney and Member of Wells, Marble & Hurst, PLLC, lives in Madison.

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