Authority of local health officer to control spread of tuberculosis

HEALTH--DISTRICTS--Authority of local health officer to control spread of tuberculosis

RCW 70.05.070 empowers local health officers to control and prevent the spread of any dangerous, contagious, or infectious disease.  RCW 70.28.031 empowers local health officers to examine and isolate persons reasonably suspected of having tuberculosis.  These statutes provide authority for local health officers to detain, test and, if necessary, treat persons reasonably suspected of having tuberculosis.

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                                                               December 23, 1993

HonorablePhil Talmadge
State Senator, District 34
432 John A. Cherberg Building, MS 40478                                         
Olympia, WA  98504-0478                                                                

                                                                                                            Cite as:  AGO 1993 No. 20

Dear Senator Talmadge:

            By letter previously acknowledged, you have asked our opinion on questions related to the authority of public health officers to contain the spread of tuberculosis (TB).  According to your letter, some local public health officers may be reluctant to take needed action owing to uncertainty about their statutory authority.  You have asked for the opinion to assist you in determining whether legislation is necessary.  We paraphrase your questions:

            1.  When a local health officer has reason to believe that a person within his or her jurisdiction has infectious tuberculosis, does the health officer have statutory authority to detain the person involuntarily for the purpose of (1) administering medically appropriate tests to determine if the person in fact has TB, (2) isolating the person so that the disease will not be transmitted to others in the community, and (3) providing appropriate medical treatment involuntarily if the person is infected and declines such treatment?

            2.  Is the answer to Question 1 the same if the person is believed to have tuberculosis, is not currently infectious, but has failed to complete a prescribed course of curative treatment, thus rendering it highly likely that the person will become infectious in the future?

            3.  If the answer to either Question 1 or 2 is yes, is it necessary for the health officer to either obtain a court order or conduct a hearing prior to either detaining, testing, or treating under the circumstances contemplated in Questions 1 or 2?

            4.  If the answer to either Question 1 or 2 is no, does either the State Board of Health, the Department of Health, or a local board of health have authority to adopt rules conferring such power on the local health officer?

            The answer to Questions 1 and 2 is yes, and we therefore do not reach Question 4.  For reasons set forth in our analysis, we cannot provide a definitive answer to Question 3.

                                                                BACKGROUND

            Since your questions relate to the authority of health officers to deal with individuals afflicted with tuberculosis (TB), we begin with a brief summary of what we understand to be pertinent information about that disease necessary to put our analysis in context.[1]

            We understand that TB is an airborne disease that is rather easily transmitted to a person who is in contact with an infectious individual.  Historically, tuberculosis was a major public health problem and one that resulted in the deaths of a significant percentage of those who became inflicted with the disease.  Many infectious patients were confined to publicly supported sanitoria where they could receive such treatment as was available and be kept apart from ‑‑ and thus less likely to infect -- the rest of the population.

            In the middle part of this century drugs became available that could be successfully used to fight the disease.  While not all drugs were effective on all patients, most cases did respond to one or more of the available drug therapies.  As a result, the incidence of the disease dropped dramatically.  Ultimately, TB sanitoria were closed and the public funds previously used to combat the spread of TB were redirected to other problems.

            We now understand, however, that this downward trend in TB cases has ceased, and that recent years have seen a resurgence in the number of new TB cases.[2]  Moreover, many of these cases involve what is known as drug resistant or multiple drug resistant (MDR) TB, so called because the particular strain of the organism that causes the disease has developed resistance to one or more of the drugs available for treating TB.  Cases of MDR-TB are more difficult to treat because the number of effective drugs is reduced -- thus, the death rate among patients with MDR-TB, even when they have received available treatment, is higher than among TB patients generally.  Indeed, early prophylactic intervention for those infected with MDR-TB is ineffective because of the resistance to these drugs.

            Finally, the precise treatment protocol varies from one patient to another, depending upon a variety of clinical factors.  In general, effective drug treatment of TB patients is long-term in nature, requiring consistent administration of medication over a period that averages from 6 to 12 months, and may go as long as 24 months, depending upon the consistency with which the patient complies with the prescribed treatment.

            Persons infected with TB (as opposed to MDR-TB) may not become infectious prior to diagnosis and, if so, can be prevented from becoming infectious through early intervention.  Even those who do become infectious cease being infectious in a relatively short time (30 days or less) once appropriate treatment is instituted.  Unfortunately, no similar generalizations can be made concerning persons who become infectious with MDR-TB, since the success of intervention and treatment in a particular case is much more difficult to predict.

            Nonetheless, the nature of the treatment is such that if the patient, even though not infectious, discontinues treatment before completion of the prescribed therapy, he or she is highly at risk of again becoming infectious in the future.  When this occurs, it is likely that the patient will be infected with MDR-TB, thus making that particular patient both more difficult to treat and, once infectious, more of a danger to spread the MDR-TB to others.

                                                                    ANALYSIS

            Question 1:

            When a local health officer has reason to believe that a person within his or her jurisdiction has infectious tuberculosis, does the health officer have statutory authority to detain the person involuntarily for the purpose of (1) administering medically appropriate tests to determine if the person in fact has TB, (2) isolating the person so that the disease will not be transmitted to others in the community, and (3) providing appropriate medical treatment involuntarily if the person is infected and declines such treatment?

            The answer to this question can be found in the statutes that set out the powers and duties of health officers.  RCW 70.28.031 provides, in relevant part, as follows:

                        Each health officer is hereby directed to use every available means to ascertain the existence of, and immediately to investigate, all reported or suspected cases of tuberculosis in the infectious stages within his jurisdiction and to ascertain the sources of such infections.  In carrying out such investigations, each health officer is hereby invested with full powers of inspection, examination and quarantine or isolation of all persons known to be infected with tuberculosis in an infectious stage or persons who have been previously diagnosed as having tuberculosis and who are under medical orders for periodic follow-up examinations and is hereby directed:

                        (a)        To make such examinations as are deemed necessary of persons reasonably suspected of having tuberculosis in an infectious stage and to isolate or isolate and quarantine such persons, whenever deemed necessary for the protection of the public health.

                         . . .

                        (d)        Whenever the health officer shall determine on reasonable grounds that an examination of any person is necessary for the preservation and protection of the public health, he shall make an examination order in writing, setting forth the name of the person to be examined, the time and place of the examination, and such other terms and conditions as may be necessary to protect the public health. . . .                       

                        (e)        Whenever the health officer shall determine thatquarantine or isolation in a particular case is necessary for the preservation and protection of the public health, he shall make an isolation or quarantine order in writing, setting forth the name of the person to be isolated, the period of time during which the order shall remain effective, the place of isolation or quarantine, and such other terms and conditions as may be necessary to protect the public health.

                        (f)         Upon the making of an examination, isolation, or quarantine order as provided in this section, a copy of such order shall be served upon the person named in such order.

                        (g)        Upon the receipt of information that anyexamination, quarantine, or isolation order, made and served as herein provided, has been violated, the health officer shall advise the prosecuting attorney of the county in which such violation has occurred, in writing, and shall submit to such prosecuting attorney the information in his possession relating to the subject matter of such examination, isolation, or quarantine order, and of such violation or violations thereof.

(Emphasis added.)

            RCW 70.28.031 provides clear authority for health officers toorder testing and isolation[3]of persons reasonably believed to have TB.  The statutory language appears to contemplate a process involving first an order from the health officer, followed by notification to the county prosecutor in those instances where the individual to whom the order is directed fails to comply.[4]  In addition, we note that RCW 70.28.035 empowers the health officer whose order has been disobeyed to seek a superior court order requiring compliance.

            While RCW 70.28.031 authorizes health officers to test and isolate persons reasonably believed to have TB, it does not authorize health officers to detain or treat such persons.  However, RCW 70.05.070 does provide this authority.  RCW 70.05.070, in pertinent part, provides:

                        The local health officer, acting under the direction of the local board of health or under direction of the administrative officer appointed under RCW 70.05.040, if any, shall:

                       . . .

                        (3)        Control and prevent the spread of any dangerous,contagious or infectious diseases that may occur within his or her jurisdiction;

                       . . .

                        (9)        Take such measures as he or she deems necessary in order to promote the public health[.]

(Emphasis added.)

            Inasmuch as it appears clear that TB is "dangerous, contagious [and] infectious", subsection (3) of the statute empowers health officers to "control and prevent" its spread.  In addition, subsection (9) empowers health officers to "take such measures . . . necessary . . . to promote the public health".  Thus, we believe that these two subsections, read together, support the conclusion that a health officer does have statutory authority to detain a person suspected of having active TB -- for the purpose of testing or isolation -- should the health officer determine that it is necessary to do so in order to promote the public health in a particular instance.  We believe that the same rationale supports the conclusion that the health officer can administer treatment to an infected person, again assuming a finding by the health officer that such treatment is necessary to promote the public health in the particular situation.

            In coming to this conclusion, we are mindful that an argument could be made that the specific provisions of chapter 70.28 RCW should be read as limiting the more general provisions of RCW 70.05.070.  See, e.g., The Hama Hama Co. v. Shorelines Hearings Bd., 85 Wn.2d 441, 458,  536 P.2d 157 (1975), and cases cited therein.  However, under this interpretation, a health officer's usual broad power under RCW 70.05.070 to control and prevent the spread of any dangerous or infectious disease would be limited when it came to TB, an extremely dangerous and infectious disease.

            Such a narrow reading of these statutes is inconsistent with the construction accorded statutes designed to protect the public health.  As the Washington Supreme Court said in Health District v. Brockett, 120 Wn.2d 140, 149, ____ P.2d ____ (1992):

            [P]rotecting and preserving the health of its citizens from disease is an important governmental function [and therefore] public health statutes and the actions of local health boards implementing those statutes are liberally construed.Snohomish Cy. Builders Ass'n v. Snohomish Health Dist.,  8 Wn. App. 589, 595, 508 P.2d 617 (1973); see also Brown v. County of Pierce, 28 Wash. 345, 349, 350, 352, 68 P. 872 (1902);State ex rel. McBride v. Superior Court, 103 Wash. 409, 419-20, 174 P. 973 (1918).  The legislatively delegated power to cities and health boards to control contagious diseases gives them extraordinary power which might be unreasonable in another context.McBride, 103 Wash. at 420.

                        Indeed, we have said the subject matter and expediency of public health disease prevention measures are "beyond judicial control, except as they may violate some constitutional right guaranteed to [defendants]." (Citation omitted.)  Kaul v. Chehalis,  45 Wn.2d 616, 621, 277 P.2d 352 (1954).

            Accordingly, we answer your first question in the affirmative, with the only qualification being that the health officer's ability to act in a particular instance must be predicated upon a determination by the health officer that it is necessary is do so to promote the public health.[5]

            Question 2:

            Is the answer to Question 1 the same if the person is believed to have tuberculosis, is not currently infectious, but has failed to complete a prescribed course of curative treatment, thus rendering it highly likely that the person will become infectious in the future?

            To answer this question, we again look to the powers of local health officers as enumerated in both chapter 70.28 RCW and RCW 70.05.070.  While chapter 70.28 RCW is not a model of clarity, it speaks variously of "reported or suspected cases", "persons known to be infected",  "persons who have been previously diagnosed as having tuberculosis and who are under medical orders for periodic follow-up examinations", "persons reasonably suspected of having tuberculosis in an infectious stage", "an individual [who] has tuberculosis", and "an individual [who] has active tuberculosis".  RCW 70.28.031, .035, .037.  Given this variation in terminology, there is potentially considerable confusion as to whether a person in the situation posited in your question would fit within any of the above-quoted categories.

            However, we believe the key statutory provision to be that set forth in RCW 70.28.031(d), empowering a health officer to issue an order for examination of "any person [when] necessary for the preservation and protection of the public health".  (Emphasis added.)  Similarly, subsection (e) of the same statute authorizes "quarantine or isolation in a particular case [when] necessary for the preservation and protection of the public health".  That language and the broad authority of local health officers generally under RCW 70.05.070, when coupled with our factual understanding that a person you describe does in fact potentially pose a public health threat, leads us to conclude that our analysis of Question 1 applies equally to Question 2.  Thus, our answer is the same:  If local health officers determine that it is necessary to promote the public health, they have statutory authority to detain, test, and treat such persons who are not currently infectious, but who have failed to complete appropriate treatment and are thus at risk of again becoming infectious.  Accordingly, the answer to Question 2 is also yes.

            Question 3:

            If the answer to either Question 1 or 2 is yes, is it necessary for the health officer to either obtain a court order or conduct a hearing prior to either detaining, testing, or treating under the circumstances contemplated in Questions 1 or 2?

            If we limited our answer to the language of the statutes, we could answer these questions quite easily by referring to the plain language of the statutes addressed above.  Neither RCW 70.28.031 nor RCW 70.05.070 by their terms require either a court order or a hearing as a predicate to health officer action of the type contemplated by your question.[6]  However, an answer based solely on the statutory language would be to ignore the number of cases in which courts have found, albeit in other contexts, that individuals have a substantive due process right not to be subjected to involuntary detention and/or treatment.  See, e.g.,In re Schuoler, 106 Wn.2d 500, 506, 723 P.2d 1103 (1986);In re Ingram, 102 Wn.2d 827, 836, 689 P.2d 1363 (1984); Harper v. State, 110 Wn.2d 873, 759 P.2d 358 (1988),rev.'d sub. nom.Washington v. Harper, 494 U.S. 210, 108 L. Ed. 2d 178, 110 S. Ct. 1028 (1990);In re Young, 122 Wn.2d 1, 857 P.2d 989 (1993);Recovery Northwest v. Thorslund, 70 Wn. App. 146, 851 P.2d 1259 (1993), petition for review granted, Washington Supreme Court No. 61020-7.

            These decisions have generally recognized that a state law that impinges on a fundamental right is constitutional under a substantive due process analysis if it serves a compelling state interest and is narrowly drawn to serve that interest.  Young, 122 Wn.2d at 26.  In addition, the decisions cited above have required that certain procedures be implemented in applying such state laws to individuals.  The procedures required are determined by analyzing factors such as (1) the nature of the interest that will be affected by governmental action, (2) the risk of erroneous deprivation of that interest through the procedures used and the value of any additional procedures, and (3) the governmental interest involved and the burden of additional or different procedures.  Id. at 43 (citingMathews v. Eldridge, 424 U.S. 319, 335, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976)).

            The question for a court would be whether application of this analysis to chapter 70.28 RCW and RCW 70.05.070, which we have concluded provide for involuntary detention and/or treatment of individuals believed to have TB, results in any requirements for procedural due process, and the nature of those requirements.  The precise procedures will vary from one situation to another.  "[D]ue process is flexible and calls for such procedural protections as the particular situation demands".  Young at 46 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 (1972)).  However, courts have usually looked at the following issues:  (1) whether a hearing is required; (2) whether a nonjudicial hearing suffices and, if so, what is the scope of judicial oversight; (3) where lies the burden of proof, and by what standard; (4) does the individual have the right to have assistance of counsel and, if so, whether that must be at state expense; (5) whether in situations involving restrictions on liberty over a prolonged period, some sort of periodic review is required to determine that justification for the restriction continues.

            It is difficult to predict what procedures a court might deem necessary to meet minimum procedural due process requirements.  Ordinarily, the starting point for such an analysis would be the procedures set forth in statutes.  In the absence of statutory procedures, the court has on several occasions reviewed statutory language authorizing involuntary commitment and has supplemented the statutory scheme with additional procedural requirements to bring the statute into compliance with minimal due process guaranties.  See, e.g.,Young, 122 Wn.2d at 46.  In some instances, the court has imposed such requirements as a function of "inherent judicial power".  In other cases, the court has "interpret[ed] statutes in a manner which renders them constitutional".  Id.  Thus, if the court determined that certain procedures were necessary to meet minimum due process, it could either interpret the statutes to require procedures not explicitly set forth in the statutory language, or simply superimpose case law procedural requirements on the statutory scheme.[7]

            Essentially, Question 3 asks what kind of procedure a court might require to constitutionally involuntarily detain, test, and, if necessary, treat a person believed to have TB.[8]  It is difficult to predict with any certainty what conclusions a court would reach in the absence of statutory procedural requirements or judicial precedent.  Since we cannot provide a definitive answer to Question 3, it would serve little useful purpose for us to speculate on the procedure a court might require.  Accordingly, we decline to answer Question 3.

            We recognize that you have requested this opinion to assist you in determining whether legislation is necessary.  We offer the following observations which may be of assistance.  First, since the current statutes do not address due process requirements, there is little statutory framework to guide the courts in analyzing the question.  Legislation laying out a procedure and addressing the issues identified above would reflect the Legislature's determination of what procedures are appropriate and establish a starting point for the court's due process analysis.  In absence of legislation, the process will be determined solely by the court on appeal from actions already taken by local health officers.

            Second, legislation would likely result in a uniform procedure throughout Washington.  At present, the health officers and their legal counsels throughout the state have no specific procedure to follow.  Legislation could establish a more consistent statewide policy with regard to the important issue of controlling the spread of TB.  If you conclude that legislation is appropriate, this office stands ready to be of assistance.

            Finally, we note that Question 4 was predicated upon a negative answer to either Question 1 or 2.  Since we answered these questions in the affirmative, we do not reach Question 4.

            We trust that the foregoing will be of assistance to you.

                                                                        Very truly yours,

                                                                        WILLIAM B. COLLINS
                                                                        Senior Assistant Attorney General

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