WASHINGTON – States should have the power to restrict the movement of patients with contagious diseases even before they have the chance to disobey doctors' orders, federal health officials say.
The need for such authority to order someone quarantined emerged as lesson No. 1 from the case of the Atlanta lawyer who went to Europe despite having a dangerous form of tuberculosis.
"If we believe the patient has a strong intent to put others at risk, we need to have confidence we can take action absent documentation of intent to cause harm," Dr. Julie Gerberding, head of the Centers for Disease Control and Prevention, told lawmakers last week.
Gerberding also mentioned outfitting a CDC plane so the government could fly patients long distances without fear of contaminating others on board and improving communications among government agencies.
Also cited by the Senate Appropriations subcommittee hearing was the lapse at the U.S.-Canadian border that allowed Andrew Speaker to enter the U.S. even though his name was on a watch list with instructions to detain him. Officials said a lone border agent made a bad decision.
The ability to require that someone be kept in isolation leads to legal and ethical questions about possible overreaching by the government.
"First of all, up front, before the patient left the United States, we believe that we could strengthen our states' ability to restrict the movement of patients before they demonstrate noncompliance with the medical order," Gerberding told lawmakers.
Peter Jacobson, a health law professor, had concerns about Gerberding's statement on two fronts.
"That's not the federal government's role and it's far, far too broad a statement. There has to be a credible threat, a direct threat of harm before you restrict someone's freedom to move, before you intrude on their individual liberties," said Jacobson, director of the Center for Law and Ethics and Health at the University of Michigan.
"For her to say in such a broad manner that a state should restrict people before they're noncompliant is extremely intrusive in my view," he said.
Also, the District of Columbia-based association representing state health officials noted that it is now up to the states, not the federal government, to determine when to issue an isolation order.
Even if Congress went along with Gerberding's idea, state legislatures seemingly would have to follow with their own changes for the proposal to take effect.
"Each governor does have the ability to quarantine. But the circumstances around it, how it's done and for how long, is tailored to each state," said Paula Steib, communications director for the Association of State and Territorial Health Officials, an organization that represents state health departments.
Besides granting states more power to isolate patients, Gerberding said the federal government should clarify its quarantine laws. Now, the laws focus on preventing sick people from coming into the country.
"Our statutes weren't really designed for this modern age of global travel," she said.
Gerberding said health officials in Fulton County, Ga., knew that Speaker had tuberculosis that was resistant to antibiotics and that he had travel plans. They met with him on May 10.
In the following days, county health officials tried to serve Speaker with written notice summarizing what was discussed at the meeting, including advice that he not travel. But they could not find him. He flew from the U.S. on May 12 for his wedding and honeymoon.
Speaker told lawmakers that doctors recommended he not travel, but they never said he was contagious or a threat to others. A county official disputed Speaker's recollection.
"I was not in the meeting, but the patient's chart indicates that he was told he was not highly contagious," said Dr. Steven Katkowsky, director of the county's Health and Wellness Department.
Sen. Tom Harkin, D-Iowa, questioned the CDC's ability to take quick and decisive action.
Harkin, the chairman of the Senate Appropriations subcommittee that questioned Gerberding, said the agency was notified May 18 that Speaker had multiple drug resistant tuberculosis, but the Homeland Security Department was not told until four days later. Speaker was not placed on a no-fly list until May 24.
"Again, with the rapidity of world travel today, it seems to me that this time frame should have been collapsed to just a few hours," Harkin said.
Said Gerberding: "I think we should have done it faster, and I think we'll be able to accelerate this next time. In retrospect, that was a mistake and I wish we had done it differently."