The Limits of Law in Public Health Emergencies

The Limits of Law in Public Health Emergencies: Building Resilient Communities Edward P. Richards, JD MPH Program in Law, Science and Public Health LSU School of Law http: //biotech. law. lsu. edu

Learning Objectives Why legal authority in emergencies is very broad l Why legal authority is usually the wrong question l Moving to all-hazards planning l Moving beyond all-hazards planning to resilient communities l Close with a Q & A session l

So, Can I Shoot Them? Think how it is going to look a year latter in court.

Why are You Worried about Legal Authority? You will be stopped from acting by a judge l You will be sued later for acting l You will be prosecuted later for acting l You are worried that your department will not be paid for the personnel and materiel used. l You are worried about the political fallout from what you do. l

The Source of Legal Authority for State Agencies l The Constitutional Reservation of Police Powers to the State l What are the police powers? The allocation of the police powers by the state constitution l The delegation of the police powers by the legislature, if required by the state constitution l

Do You Need a Detailed Law? l The courts have upheld public health emergency actions based on broad delegations l "Do l what you need to do to protect us" This deference is greatest in emergencies

The Important Questions Is there really is an emergency? l Are you trying to save lives and/or prevent injuries? l Do you know what you need to do and how to do it, and do you have the necessary materiel? l Are you trying to use emergency public health power for law enforcement? l

Why the Push for Lots of Emergency Powers Laws? Confusion over legal authority by lawyers who are frightened to say yes l Confusion between lack of authority and screwing up l Failure to understand that detailed laws pose new risk l Real concerns on who is going to pay for stuff l

Why do Legislators Pass Emergency Powers Laws? Legislature as sausage factory l Law is cheap l Passing the buck l Please sir, can I have some personnel and rate funding with that responsibility?

The Worst Case Lots of very specific laws and duties, and not enough resources to do the job.

Moving to All Hazards Planning

What We Do Well Traditional Emergency Response l Geographically limited l Crime scenes l Tornados l Derailed trains l Temporarily limited l No one is staffed to run at 100% mobilization l Most people have multiple duties l Relatively frequent events

What We Do Not Do Well Wide geographic region l Long time frame l Significant displaced population l Maintain readiness for long periods without events l l Training and materiel costs l Loss of public attention l The pandemic flu problem

All Hazards Planning Generalize plans so that planning for the federal crisis de jure provides real benefits l Many of you have started doing this l Examples l l Use pandemic flu planning to address the yearly flu pandemic l Use terrorist attack planning to educate the community about risks such as chemical plant accidents

Why All Hazards? l Difficult to maintain readiness for a low probability event l Plan must provide short term benefits to be supported in the long term l Impossible to change behavior patterns on short notice l Plan must incorporate new behaviors and attitudes into everyday situations

Example: All Hazards Planning for Pandemic Flu l l Institute vaccination programs for all recommended adult immunizations Address policies that encourage employees to work sick Develop and implement workplace surveillance for infectious disease risks Include families in these plans because officers cannot work effectively if their families are at risk

Management Oversight Advantages Provides measurable outcomes, which disaster only planning does not l Provides an economic and workplace benefits which will make the program easier to continue l Requires policies to be worked out with unions and other stakeholders l l Assures buy in l Identifies problems

The Next Step: Resilient Communities Bring All Hazards Planning for Wide Scale Public Health Emergencies to the Community

What is a Wide Scale Public Health Emergency? l Long term l l Widespread l l l Days to longer Depletes manpower and resources The affected population requires support Affects a region or significant urban area Affects everyone, including the police and public health personnel Significant Risk

Examples l Epidemic l Bird l flu Wide area hazmat incident with long term risks l Anthrax l Dirty l bomb Natural disaster l Hurricanes, very severe winter storms l Earthquakes

Limited Response Options in Public Health Emergencies You cannot shoot people who are just trying to take care of their families l You cannot arrest large numbers of persons to restore order l You cannot occupy significant territory l You cannot begin to supply basic necessities to everyone who is affected l

Your People are also Victims Widespread public health and environmental crises affect law enforcement personnel l Most personnel will look to their families first l Law enforcement families cannot be protected outside of the context of their communities l

Day to Day Life Goes On l No federal plan acknowledges that there are criminals and the homeless l Biggest joke - Pandemic flu plan says they will close the borders l Too many plans can only be staffed by assuming that no other law enforcement or first response activities will take place l Only works for short periods

Why 9/11 is the Wrong Model Deaths, but not injuries - limited impact on health care l Relatively small percentage of the population displaced for a long period of time l Relatively little infrastructure destroyed l No mitigation strategies l

Why Katrina is a Better Model Widespread l Long-term l Foreseeable l The risks could have been mitigated l The response needs outstripped all available resources l

What Do Communities Need in Public Health Emergencies Food, water l Environmental management such as heat l Transportation and shelter if an evacuation l Primary health care l Family support - where are the kids? l Support of local institutions, not volunteer imperialism. l

Who Will Provide for the Public? l Federal model l Local first responders l Supported by the military and federal support l State Models l Public l health, supported by law enforcement Reality l In most areas the police are the organizations with the most staff and resources

Who Will Fund This in the Long Term? l The existing money is coming from other essential services that cannot be postponed forever l Priorities will shift as fears of disaster abate l Many health departments are losing net money l Bottom-line: No one is funding real public support

Objectives of Resilient Communities Reduce the need for support from public services l Reduce suffering and death l Reduce the risk of public disorder l Most important: l Build trust and credibility so the community will cooperate with needed mitigation measures l

Building Blocks for Resilient Communities

Honest Risk Communications l Be realistic about the risk l Bird flu v. yearly flu l Hurricane v. terrorist attack l Do not bet against gravity l Do not suppress market risk signals l Just say No to Potemkin planning l Big issue in public health l Hurricane Pam l Being a team player puts the public at risk

Realistic Preventive Strategies l l Must fit in with real household management Examples l l l Gasoline What to take in evacuations How to keep food and water on hand How to treat water and what is safe to eat when the refrigerator goes off When to go back and what to do when you get there

Start with Your Own People l Get the families of your own people involved l Builds support - they become part of the solution l Direct benefits to the department l Encourage them to involve their neighbors l Stabilizes the neighborhood, making their own situation more secure l Do not be the only person on your block with water

Working with Other Organizations Find out if your local public health plans are really staffed and supported l Find out the plans of the local hospitals and other health care providers l Coordinate with retailers l Work with churches and other private organizations l l Walmart and Home Depot can move goods more effectively than Northcom

Reinforcing the Message when Disasters are out of Fashion l Priorities are going to shift l FEMA has already punted on realistic building standards in New Orleans and the Gulf Coast l No politician will keep supporting prevent measures once the public gets interested in other things l We have a lot of social problems we have been ignoring l The problems will still be there

Political Benefits l Most communities do not trust public health (some do not trust the police) l Anti-vaccination forces l Equating trans-fat with the plague l Incompetent political appointees in critical positions l Law enforcement will bear the risk of failed public health response