When Public Health Meets the Judiciary Michael J Murphy Anne M. Murphy, Maureen E. Comer, and Linda Chezem (Moderator)

Michael J Murphy he confl’ict between courts and medicine is T best shown in the mental health cases

requiring judgment of whether a person should be confined, and whether they should be medicated or left free to decide for themselves. In such cases, deprivation of liberty for noncriminal offenders is at question, but if they are released, they may be exposed to injury or injure others. “Clear and convincing” evidence is hard to prove in such cases.

The TOPOFF 2 terrorism preparedness exercise was two years in planning, but the courts were involved only seven days before the exercise (because quarantine issues were added to that exercise only two weeks beforehand). Judge Murphy was put in charge of the Circuit Court building and was asked to stop all court proceed- ings to stop people from going into a building that might have been contaminated. Two important lessons were learned: at least one court should have been left open to provide a forum of appeal, and the courts should have been involved in TOPOFF 2 early in the planning process. Currently,’ those charged with a crime in Illinois must appear before a judge within 24 hours. Due process is threatened when no court is available.

Experts are needed to educate judges, particu- larly on issues of detention. Generally, courts prohibit ex parte communication (communication with a judge that includes only one party) because if only one side communicates with the judge, there is a risk of biasing a case. Thus, education about the legal issues pertaining to public health emergencies, such as quarantine and isolation, is needed before an emergency arises. In the event of a case involving a public health emergency,

expert’information can be provided to both sides (i.e., the person being detained and the detainer). An amicus brief (friend of the court brief) should be filed as soon as possible and must be made available to any and all interested parties. Bench books (i.e., a brief submitted to the judge explain- ing the legal issues involved in the case) provided to a presiding court are very helpful and also must be made available to any and all interested parties.

n Anne M. Murphy olice powers have historically been the legal cornerstone for state and local public

health regulation: reporting and regulation of communicable disease, enforced isolation and quarantine, regulation of health facilities (involv- ing significant issues of patient and worker safety), and food, drug, and dairies regulation (e.g., food embargo, involving complex jurisdictional issues). Public health regulation also covers laboratory testing and health data collection. The Health Insurance Portability and Accountability Act (HIPAA) provides the authority for the health data collection, but there is increasing concern about the release of such information.

Sooner or later, the judiciary will weigh in on the legal authorities of public health. Dialogue with the judiciary is needed to address antiquated judicial processes that are affected by bioterrorism preparedness and response. Public health legal issues are unique because they involve complex medical and clinical issues, multiple jurisdictions, state and local regulations, and multiple disciplines (e.g., medicine, epidemiology, environmental health, emergency response, law enforcement), and all are overlaid by state and local police

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powers. Specific challenges include the multiple jurisdictions involved in emerging disease out- breaks (e.g., monkeypox), escalating health facility insolvency (particularly as related to an increased emphasis on patient safety), increased demand for health data paralleling greater legal regulation of confidentiality, and vaccination and research initiatives involving civil liberties aspects.

In Illinois, TOPOFF 2’s interdisciplinary and interjurisdictional planning teams evolved into a standing workgroup of all stakeholders. This will be the forum to reach consensus on the state’s proposal on public health emergency powers; updating state isolation regulations to include forensic epidemiology, legal, and judicial issues; addressing the scope of public health emergency powers and disaster powers; and issues of access to data by public health officials.

Ideas of how to address public health emergency issues include inviting the judiciary to participate (without ex parte communication) in task forces and workgroups, educational forums (including, perhaps, customized education for the judiciary), creating bench books, and in approach- ing the leadership of judicial organizations about their preferences for involvement.

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Maureen E. Conner

very state has a judicial branch education E organization supervised by the state supreme court or administrative office, or run by law schools, universities, or nonprofit groups. All organizations work with the trial and appellate courts to identify the state’s needs.

The involvement of JERITT (The Judicial Education Reference, Information and Technical Transfer Project) can help reduce the time and cost of developing new education programs, report on timely issues or emerging trends in judicial branch education, and disseminate important information (e.g., through publications, electronic communica- tions, and technical assistance offerings). JERITT conducts annual and biennial surveys related to education and training to develop a snapshot of what is happening across the country. Among other services, JERITT’s website (http://jeritt.msu.edu) offers free access to databases, online grant products, specialized research, and information for managing judicial branch education. A new electronic communications capacity includes list- serves, threaded discussions, and chat rooms for use by judicial branch education organizations.