Robert Gatter and Ana Santos Rutschman: Require court orders for all quarantines

Robert Gatter and Ana Santos Rutschman: Require court orders for all quarantines

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Missourians now know that local health officials asked a suburban St. Louis family to quarantine in their home while awaiting coronavirus test results for a member of that family. But do you know that health officials also have asked others to do the same both recently and during the Ebola scare in 2014-2015?

News reports reveal that at least one other Missourian and his spouse were asked to self-quarantine following exposure to the novel coronavirus. Further, health officials in the state quarantined 10 individuals exposed to Ebola several years ago, according to one report. The same report could not find a public record of these Ebola quarantines, suggesting that they were informal requests. Undocumented, unchecked, self-quarantine requests are now Missouri’s preferred tool to fight the spread of dangerous infectious diseases.

The lack of adherence to formal procedures is not the only problem surrounding Missouri’s approach to quarantines. The underlying tone used by health officials in making several of these “requests” makes them sound more like threats. St. Louis County Executive Sam Page acknowledges that health officials most recently told the father of the suburban family “that he must remain in his home or they will issue a formal quarantine that will require him and the rest of his family to stay in their home by the force of law.”

The ongoing developments in connection with the spread of the novel coronavirus in Missouri remind us that it is high time for the state to change its approach to quarantines and make it more transparent, accountable and fair. The Missouri health code should curtail the use of informal quarantines. No person should be quarantined unless officials have obtained a court order. Statutes in other states require this procedural safeguard, and Missouri should as well.

If no changes take place, the status quo is ill-suited to the public health challenges posed by current and future outbreaks of pathogens like the novel coronavirus. The current practice of oral requests to self-quarantine accompanied by an oral threat of a formal order is dangerous for several reasons.

First, it leads to miscommunication between health officials and private citizens. This appears to already have happened between St. Louis County health officials and the family recently asked to self-quarantine. In the absence of a written document, family members may have misunderstood the county’s instructions to stay home.

Second, the need for health officials to act quickly in the face of mounting fear over a novel infectious disease creates an opportunity for mistakes. This happened during the Ebola scare when Missouri officials threatened into self-quarantine individuals who were not symptomatic for Ebola — a disease with natural warning signs and that cannot be transmitted except by patients in the throes of the illness. Requiring court orders for all quarantines constitutes a nudging mechanism: It prompts health officials to perform a more thorough assessment of all available information and thus minimizes the risk of similar mistakes happening with coronavirus or other diseases.

Third, court orders are public records. They would document how officials wield the awesome power to deprive individuals of their freedom of movement. Most often, public records would show that health officials’ actions are justified by the science of the disease and are taken only after exhausting less extreme alternatives. In this way, the transparency of a public record could promote confidence in health officials, which is vital during a public health emergency.

Of course, health officials need the tools necessary to act quickly, and court procedures can be slow. But orally threatening citizens into self-quarantine for two weeks or more is never an appropriate tool.

There are ways to balance public health imperatives with the need to preserve individual rights. For instance, a redrafted state law could authorize health officials to issue 24-hour quarantine orders without seeking prior court approval so long as those orders are in writing and are accompanied by a petition to a court seeking a judicial order for a longer quarantine period.

None of this excuses Missourians from failing to cooperate with clear instructions of health officials when the nation is experiencing an infectious disease crisis. Informal quarantine as currently practiced by our state and local health officials, however, will result in miscommunication, mistakes and mistrust.

Robert Gatter is professor of law and Ana Santos Rutschman is assistant professor of law in the Center for Health Law Studies at St. Louis University School of Law.

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