Highway alert: Covid-19 checkpoint ahead, overhead sign in Florida on state border.

Amending the Public Health Service Act to Encourage CDC Action to Stop COVID-19

By Jennifer S. Bard

The U.S. Centers for Disease Control and Prevention (CDC) already has all the power it needs to limit the movement of people in order to slow the spread of COVID-19.

Yet, throughout this pandemic, they have taken no steps beyond issuing stark warnings, which have been only marginally effective. For example, this Thanksgiving, estimates indicate that almost 5 million flew and up to 50 million drove to join others. Dr. Deborah Birx is warning that everyone who did so should consider themselves infected.

The CDC’s historic reluctance to institute the politically unpopular measure of restricting travel could be countered by adding a self-executing amendment to 42 U.S. Code 264 requiring that the option be assessed at the beginning of an outbreak and periodically reviewed. More specifically, this amendment should create a review committee and set metrics for travel restrictions.

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a crowd of people shuffling through a sidewalk

Reopening the Country During COVID-19: Legal and Policy Issues 

By Mark A. Hall and David M. Studdert

Every public health crisis poses unique legal and ethical challenges, but none more so in modern times than the novel coronavirus pandemic. Urgent responses to the pandemic have halted movement and work and dramatically changed daily routines for most of our population in ways entirely unprecedented. As we wrote recently, this sweeping response challenges a host of civil liberties that state and federal statutes and constitutions protect. It should come as no surprise, then, that we are starting to hear widespread grumbling. There are even reports of some initial “protest” lawsuits. But even without overt legal challenges, public health officials are well attuned to the need to respect civil liberties in setting appropriate policies. And, if those officials are not well-attuned, politicians, who are concerned about widespread economic fallout, will forcefully remind them.

It follows that there is a pressing need for a set of principles to guide not just the imposing of COVID-type restrictions, but also relaxing or lifting them.

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cruise ship

Old and New Ways of Coping with COVID-19: Ethics Matters (Part I)

By Leslie Francis and Margaret Pabst Battin

This post is part I of a two-part series on pandemic control strategies in response to COVID-19.

Your life and the lives of many others may depend now on isolation, quarantine, cordon sanitaire, shelter in place, or physical distancing.

These terms have entered the public consciousness rapidly. Though general awareness has increased, the important practical and ethical differences between these practices require further explanation.

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Will the Real Evidence-Based Ebola Policy Please Stand Up? Seven Takeaways From Maine DHHS v. Hickox

By Michelle Meyer

Ebola pic

The case I mentioned in my last post, Maine Department of Health and Human Services v. Kaci Hickox is no more. Hickox and public health officials agreed to stipulate to a final court order imposing on Hickox the terms that the court had imposed on her in an earlier, temporary order. Until Nov. 10, when the 21-day incubation period for Ebola ends, Hickox will submit to “direct active monitoring” and coordinate her travel with Maine public health authorities to ensure that such monitoring occurs uninterrupted. She has since said that she will not venture into town or other public places, although she is free to do so.

In a new post at The Faculty Lounge,* I offer a detailed account of the case, which suggests the following lessons:

  1. As Hickox herself described it, the result of her case is a “compromise,” reflecting neither what Hickox nor what Maine initially wanted.
  2. That compromise was achieved by the parties availing themselves of the legal process, not through Hickox’s civil disobedience.
  3. The compromise is not easily described, as it has been, as a victory of science-based federal policy over fear-based state demagoguery. By the time the parties got to court, and perhaps even before then, what Maine requested was consistent with U.S. CDC Guidance, albeit a strict application of it. What Hickox had initially offered to do, by contrast, fell below even the most relaxed application of those guidelines, although by the time the parties reached court, she had agreed to comply with that minimum.
  4. The compromise applies only to Hickox, and was based on a stipulation by the parties to agree to the terms that the court had temporarily imposed after reviewing a limited evidentiary record. Additional evidence and legal arguments that the state might have raised in the now-cancelled two-day hearing could have resulted in a different outcome.
  5. A substantially different outcome, however, would have been unlikely under Maine’s public health statute. Indeed, it is not clear that Maine’s public health statute allows public health authorities to compel asymptomatic people at-risk of developing Ebola to do anything, including complying with minimum CDC recommendations.
  6. “Quarantine” is a charged, but ambiguous, term. It allows us to talk past one another, to shorthand and needlessly politicize a much-needed debate about appropriate policy, and to miss the fact that the CDC Guidance in some cases recommends what could be fairly described as a “quarantine” for people like Hickox and requires it for asymptomatic people with stronger exposure to Ebola (but who are still probably less likely to get sick than not).
  7. It’s not clear who has bragging rights to Ebola policy “grounded in science,” or what that policy looks like.

* The piece is quite long, and I cannot bear the fight with the WordPress formatting demons that it would require to cross-post it here.

More on the Maine Ebola Order

By Nicolas Terry

Today’s order from Chief Judge LaVerdiere is available here. It removes restrictions on Kaci Hickox’s movements and essentially orders her to comply with the latest CDC guidelines that she was already following on a voluntary basis. According to this report the state troopers that had been posted outside her house have left. Two paragraphs at the end of the order are worth quoting in full.

First, we would not be here today unless Respondent generously, kindly and with compassion lent her skills to aid, comfort, and care for individuals stricken with a terrible disease. We need to remember as we go through this matter that we owe her and all professionals who give of themselves in this way a debt of gratitude.

Having said that, Respondent should understand that the court is fully aware of the misconceptions, misinformation, bad science and bad information being spread from shore to shore in our country with respect to Ebola. The court is fully aware that people are acting out of fear and that this fear is not entirely rational. However, whether that fear is rational or not, it is present and it is real. Respondent’s actions at this point, as a healthcare professional, need to demonstrate her full understanding of human nature and the real fear that exists.…

An interview with Ms Hickox suggested she was taking the judge’s advice, “I am sensitive… I don’t want to make anyone uncomfortable.” However, according to this recent report Governor LePage believes, “we don’t know what we don’t know about Ebola” and does not trust Ms. Hickox.

Courts as Ebola Educators

By Scott Burris

News in this afternoon is that a Maine state judge has lifted the quarantine order on nurse Kaci Hickox, saying that she “currently does not show symptoms of Ebola and is therefore not infectious.”

The ruling conforms to the best available scientific evidence and CDC recommendations.  It also shows the importance of judicial review as a check on the exercise of emergency powers. Hearkening back to the many school exclusion cases during the HIV epidemic, I hope it will help reassure a public confused by the gap between what CDC and other experts say is necessary and what some political leaders are doing.  The best way for government to keep our trust in this outbreak is to offer accurate information — and then behave accordingly.

Above the (Public Health) Law: Healthcare Worker Deception and Disobedience in a Time of Distrust

By Michelle Meyer

[Author’s Note: Addendum and updates (latest: 4  pm, 10/31) added below.]

A physician shall… be honest in all professional interactions, and strive to report physicians… engaging in fraud or deception, to appropriate entities.
AMA Principles of Medical Ethics

This is a troubling series of news reports about deception and defiance on the part of some healthcare workers (HCWs) in response to what they believe to be unscientific, unfair, and/or unconstitutional public health measures (to be clear, the text is not mine (until after the jump); it’s cut and pasted, in relevant part, from the linked sources):

(1) Ebola Aide Doc: I’m Not Telling My Team To Tell The Truth

Gavin Macgregor-Skinner, an epidemiologist and Global Projects Manager for the Elizabeth R. Griffin Foundation, who has led teams of doctors to treat Ebola in West Africa, reported that he “can’t tell them [his doctors] to tell the truth [to U.S. officials]” on Monday’s “CNN Newsroom.”

“At the moment these people are so valuable . . . I have to ensure they come back here, they get the rest needed. I can’t tell them to tell the truth at the moment because we’re seeing so much irrational behavior,” he stated. “I’ve come back numerous times between the U.S. and West Africa. If I come back now and say ‘I’ve been in contact with Ebola patients,’ I’m going to be locked in my house for 21 days,” Macgregor-Skinner said as his reason for not being truthful with officials, he added, “when I’m back here in the US, I am visiting US hospitals everyday helping them get prepared for Ebola. You take me out for three weeks, who’s going to replace me and help now US hospitals get ready? Those gaps can’t be filled.

He argued that teams of doctors and nurses could be trusted with the responsibility of monitoring themselves, stating, “When I bring my team back we are talking each day on video conferencing, FaceTime, Skype, text messaging, supporting each other. As soon as I feel sick I’m going to stay at home and call for help, but I’m not going to go to a Redskins game here in Washington D.C. That’s irresponsible, but I need to get back to these hospitals and help them be prepared.

UPDATE: Here is the CNN video of his remarks.

(2) Ebola Doctor ‘Lied’ About NYC Travels

The city’s first Ebola patient initially lied to authorities about his travels around the city following his return from treating disease victims in Africa, law-enforcement sources said. Dr. Craig Spencer at first told officials that he isolated himself in his Harlem apartment — and didn’t admit he rode the subways, dined out and went bowling until cops looked at his MetroCard the sources said. “He told the authorities that he self-quarantined. Detectives then reviewed his credit-card statement and MetroCard and found that he went over here, over there, up and down and all around,” a source said. Spencer finally ’fessed up when a cop “got on the phone and had to relay questions to him through the Health Department,” a source said. Officials then retraced Spencer’s steps, which included dining at The Meatball Shop in Greenwich Village and bowling at The Gutter in Brooklyn.

Update 11PM, 10/30: A spokesperson for the NYC healh department has now disputed the above story, which cites anonymous police officer sources, in a statement provided to CNBC. The spokesperson said: “Dr. Spencer cooperated fully with the Health Department to establish a timeline of his movements in the days following his return to New York from Guinea, providing his MetroCard, credit cards and cellphone.” . . . When CNBC asked again if Spencer had at first lied to authorities or otherwise mislead them about his movements in the city, Lewin replied: “Please refer to the statement I just sent. As this states, Dr. Spencer cooperated fully with the Health Department.”

(3) Ebola nurse in Maine rejects home quarantine rules [the WaPo headline better captures the gist: After fight with Chris Christie, nurse Kaci Hickox will defy Ebola quarantine in Maine]

Kaci Hickox, the Ebola nurse who was forcibly held in an isolation tent in New Jersey for three days, says she will not obey instructions to remain at home in Maine for 21 days. “I don’t plan on sticking to the guidelines,” Hickox tells TODAY’s Matt Lauer. “I am not going to sit around and be bullied by politicians and forced to stay in my home when I am not a risk to the American public.”

Maine health officials have said they expect her to agree to be quarantined at her home for a 21-day period. The Bangor Daily News reports. But Hickox, who agreed to stay home for two days, tells TODAY she will pursue legal action if Maine forces her into continued isolation. “If the restrictions placed on me by the state of Maine are not lifted by Thursday morning, I will go to court to fight for my freedom,” she says.

Some thoughts on these reports, after the jump.  Read More