The ACLU, Pandemic Preparedness, and You

There's a series of posts I've done for Daily Kos about how the Feds are preparing for an influenza pandemic, including disaster preparedness, and pandemic preparedness, as well as a review of the National Response Framework that the federal government uses to approach disasters and disaster management. A recent position paper by the ACLU has brought this back into the headlines. How far the Feds can and will go to contain a pandemic and protect your health is an important topic both to discuss and to track. The ACLU report provides an opportunity to review selected aspects of this topic.

Background

Flu pandemics are different than other disasters because they are extensive (they happen everywhere), significant (a quarter of the population might be affected, with a third of the population unable to report for work because of illness or health care obligations for dependents and others) and require careful planning to help prevent spread of disease as well as to mitigate the disruption a pandemic would bring to our worldwide just-in-time economic system. One aspect of this planning includes the use, and consideration of, isolation and quarantine at the beginning of a pandemic outbreak, when containment is still theoretically feasible (although many experts doubt if containment is indeed ever feasible). From Flu Wiki:

Isolation and quarantine are two public health strategies designed to protect the public by preventing exposure to infected or potentially infected persons.

In general, isolation refers to the separation of persons who have a specific infectious illness from those who are healthy and the restriction of their movement to stop the spread of that illness. Isolation is a standard procedure used in hospitals today for patients with tuberculosis and certain other infectious diseases.

Quarantine, in contrast, is very unusual and generally refers to the separation and restriction of movement of persons who, while not yet ill, have been exposed to an infectious agent and therefore may become infectious. Quarantine of exposed persons is a public health strategy that is intended to stop the spread of infectious disease.

Both isolation and quarantine may be conducted on a voluntary basis, and this is usual, or compelled on a mandatory basis through legal authority.

Back in 2005, George Bush held a news conference in which he proposed military intervention.

The United States may need to quarantine regions of the country if localized outbreaks of a pandemic flu occur, US President George Bush said today during a press conference in Washington, DC.

Bush suggested expanding presidential power over state-run National Guard operations to implement such quarantines in the event of a pandemic.

By executive order (April 1, 2005) pandemic influenza was added to the Public Health Service Act of 2003 as a quarantine disease. However, there was considerable push-back from the public health community at that time (link is to a Boston Globe op-ed from George Annas:

WHENEVER THE world is not to his liking, President Bush has a tendency to turn to the military to make it better. The most prominent example is the country's response to 9/11, complete with wars in Afghanistan and Iraq. After Hurricane Katrina, Bush belatedly called on the military to assist in securing New Orleans, and has since suggested that Congress should consider empowering the military to be the ''first responders" in any national disaster.

On Tuesday, the president suggested that the United States should confront the risk of a bird flu pandemic by giving him the power to use the US military to quarantine ''part[s] of the country" experiencing an ''outbreak." So we have moved quickly in the past month, at least metaphorically, from the global war on terror to a proposed war on hurricanes, to a proposed war on the bird flu.

Of all these proposals, the use of the military to attempt to contain a flu pandemic on US soil is the most dangerous...

Planning makes sense. But planning for ''brutal" or ''extreme" quarantine of large numbers or areas of the United States would create many more problems than it could solve...

Public health in the 21st century should be federally directed, but effective public health policy must be based on trust, not fear of the public.

Since then, and until recently, the voluntary nature of quarantine and containment has been stressed by CDC, HHS and federal disaster planners.

Contemporary Concerns

On Monday of this week, the ACLU issued a strongly-worded report entitled Pandemic Preparedness: The Need for a Public Health — Not a Law Enforcement/National Security — Approach, co-authored by George Annas, the same author of the Boston Globe editorial from 2005 (more after the flip).

Here's a summary from CIDRAP, which also includes reactions to the plan:

The American Civil Liberties Union (ACLU) this week charged that federal pandemic planning efforts rely too heavily on law enforcement and national security approaches, in effect making people, not disease, the enemy.

The ACLU aired its concerns in a report authored by three prominent public health law attorneys and released Jan 14 at a press conference in Washington, DC. The authors are George Annas and Wendy K. Mariner from the Boston University School of Public Health and Wendy E. Parmet of Northeastern Law School.

The report discusses a wide range of privacy protections and other civil liberties that the ACLU believes might be threatened in a pandemic setting. The authors include a list of recommendations intended to focus pandemic planning efforts more toward community engagement, as well as an appendix that covers a number of constitutional issues that could surface during a pandemic.

"A law enforcement approach is just the wrong tool for the job when it comes to fighting disease," said Barry Steinhardt, director of the ACLU's technology and liberty program, in a Jan 14 press release. He said history shows that a coercive approach to pandemic that treats sick people as enemies is ineffective from a public health perspective.

But a spokesman for the US Department of Health and Human Services (HHS) says the group has mischaracterized the government's efforts. Also, other critics with expertise in public health and the law say the ACLU report is marred by a misunderstanding of government response plans.

One of the more interesting aspects of the debate is the discussion of using an 'all-hazards approach', meaning that the plans for preparedness can be adapted for "whatever hazard comes", rather than concentrating on pandemics alone. This makes the idea easier to adopt, especially for financially strapped local municipalities. But the approach has its drawbacks.  

Michael T. Osterholm, PhD, MPH, said he doesn't think health officials will be able to contain an emerging pandemic and that the ACLU report misses the mark because it doesn't seem to consider aspects of the federal plan outside of initial containment. "Is this a law enforcement based approach? It's not, no way," said Osterholm, who is director of the University of Minnesota Center for Infectious Disease Research and Policy, publisher of CIDRAP News.

However, Osterholm said he agrees with the ACLU's criticism of the government's emphasis on an all-hazards approach to disaster preparedness. Planning for a pandemic presents many unique challenges, he said. For example, the long duration of a severe pandemic, unlike a disaster such as the 9/11 terrorist attacks, would lead to a collapse of the nation's just-in-time economy, Osterholm said.

A major aspect of the report has to do with federal vs state responsibilities:

Steven Gravely, a public health law expert who is a partner and head of the healthcare practice group at Troutman Sanders, a law firm in Richmond, Va., said he doesn't think the ACLU report is a fair assessment of the nation's pandemic planning efforts. "It focuses too much on the federal level and doesn't recognize that disaster response—pandemics, particularly—is handled by several governments: local, state, tribal, federal, and international," Gravely told CIDRAP News.

"What jumped out at me is their discussion of quarantine and isolation," he said. "Though they characterize the federal plan as militaristic, 95% of isolation and quarantine is done at the state level. Federal involvement in quarantine is extremely limited."

Even in the Andrew Speaker [tuberculosis] case, the federal isolation order was in force for just a few days, and then the state of Colorado took over, Gravely said.

It is a fact that the plan puts a great deal of emphasis on local response, so much so that the Federal plan has been described as

having two components: the first is procurement of vaccines and antivirals for stockpiles and sale to states at a discount; the second is to leave everything to the locals.

It's so true that the local entities are struggling with this. And just as an 'all-hazards approach' has good (more attractive to adopt, more cost-effective and more efficient) and bad (not enough attention to the uniqueness of pandemics) aspects, so does the fed vs local response. From a civil liberties perspective, this might be a case where local is protective of rights (but then again, I live in New England). Still the specific recommendations (.pdf, page 24) of the ACLU are worth emphasizing:

Protecting Health

1. The government should ensure stockpiling and fair and efficient distribution of vaccines, medications, food, water, and other necessaries in the event of a pandemic.

2. Distribution and rationing decisions for vaccination and treatment should be based on the goal of minimizing the detrimental health effects of the pandemic.

3. Public health measures must not be based on race, color, ethnicity, national origin, religion, gender or sexual orientation and can be based on age or disability only if there is good reason to believe particular groups are either at much higher risk of death or have a much higher likelihood of spreading the disease if not vaccinated or treated.

4. Access to vaccination or treatment should not be conditioned on a waiver of one’s constitutional rights.

5. The government and the private sector should encourage and support the development of rapid, accurate diagnostic tests for infectious diseases that reduce the possibility for error in identifying individuals who have a dangerous contagious disease.

6. Non-emergency programs to protect the public’s health should be supported in order to develop and preserve a healthy population that can optimally survive emergencies.

7. Government plans for responding to a pandemic should be based on the concept of community engagement, rather than individual responsibility.

Conclusions

Individual responsibility is important and cannot be avoided, but individuals cannot replace the role of the community. we agreed with that when we founded Flu Wiki in 2005, as it was meant to foster both a community and an individual response.

The purpose of the Flu Wiki is to help local communities prepare for and perhaps cope with a possible influenza pandemic. This is a task previously ceded to local, state and national governmental public health agencies.

In addition, recommendation #6, the part about rebuilding public health infrastructure, is a key component of preparedness and, in reality, the ultimate all-hazard approach. Like its companion, the health care system, the next president has a big job ahead of them in terms of making sure our decaying health system is up to snuff.

For personal preparation, see Get Pandemic Ready, a new web page for those just starting out (the ACLU says the government should help people stockpile, not just tell them to do so. Well, this Idaho web site helps by telling you how, and with this MN one, is a valuable resource).

There's more in the report, and specific recommendations are also made on the topics of Protecting Liberty, Protecting Privacy and Protecting Democracy. Because these are such important issues, the legal section of the Flu Wiki was one of the first pages we created. The issues raised in the ACLU report have not been settled by the feedback, and there will be more to say on this rich topic.

For anyone who wants a more detailed look, read the report itself, and inspect the Flu Wiki legal and ethics links. Legal aspects should not be totally divorced from ethical considerations. For example (this from the SARS experience), if someone is quarantined, how do they collect a paycheck? Who feeds them? Issues like this are always best discussed before a pandemic hits; by the time it actually does, it's too late for anything but survival.