2007 Spring, Pg. 47. RSA 141-C: Due Process and the Pandemic.

AuthorBy Attorney Nancy J. Smith

New Hampshire Bar Journal


2007 Spring, Pg. 47.

RSA 141-C: Due Process and the Pandemic

New Hampshire Bar JournalSpring 2007, Volume 48, No. 1Health Care & the LawRSA 141-C: Due Process and the PandemicBy Attorney Nancy J. SmithI. Introduction

This article examines the due process protections for mandatory quarantine and isolation that were incorporated into RSA 141-C in 2002 and how these provisions may be activated in a public health emergency. It will analyze the possible impact of a serious influenza pandemic health crisis on New Hampshire in light of historical information about the impact of the Spanish Flu Pandemic of 1918-1919 in New Hampshire, and statistics from other more recent pandemics. The usefulness of various tools available to state and local authorities in the event of a pandemic, such as voluntary isolation and quarantine, work quarantine, closure of public gatherings will be addressed. Finally, this article will serve as an encouragement to lawyers and firms to consider possible steps that may be taken to anticipate and manage the potential impact of a pandemic on their own legal practice.

In order to discuss why the legal profession should be prepared for a pandemic, it is necessary to briefly define what a pandemic is. While a complete definition of a pandemic should be left to the epidemiologists, the following definition is useful for this article: A pandemic is a disease occurring over a wide geographic area that affects an exceptionally high proportion of the population.(fn1) Influenza is only one of 16 diseases that the World Health Organization (WHO) monitors for possible pandemic.(fn2) Public concern in recent years has focused on the risk of avian influenza mutating to an influenza virus transferable to humans.

Influenza viruses mutate fairly easily by swapping genes, particularly when a host is infected by more than one type of virus at the same time.(fn3) A Pandemic flu is a new virulent human flu that causes a global outbreak, or pandemic, of serious illness. Because there is little natural immunity, the disease can spread easily from person to person.(fn4)

There have been three flu pandemics in the last century: the 1918-1919 Spanish Flu; the 1957 Asian Flu and the 1968 Hong Kong Flu. The 1918 Spanish Flu outbreak is the one against which all others are measured. It affected 20 to 40 percent of the population worldwide, with an estimated 50 million deaths, of which approximately 675,000 occurred in the United States.(fn5) Of the effects here in New Hampshire, the following are but an example:

Here in Concord, a former mayor named Charles Corning reported, "Grippe [influenza] is sweeping over Massachusetts and New Hampshire as fire shrivels the fields, laying out communities and taking a toll of death unprecedented." He continued, "A heavy sense of anxiety and apprehension like a dismal cloud in midsummer weighs heavily upon us because of the deadly ravages of the so-called Spanish influenza. Funerals jostle one another so the sable procession goes on."

The pandemic caused shortages of essential workers. Thirty to forty percent of the employees at the New England Telephone and Telegraph Company were sick, and so the company took out ads, imploring customers to cut out unnecessary calls and not to ask for the operator.

There were also terrible shortages of doctors and nurses. During the peak of the pandemic (around mid-October), a public health worker from the town of Berlin (located in northeast New Hampshire) reported: "It is hardly possible for me to describe the conditions in this community. I am the only experienced public health worker here with the exception of the staff. Saturday, I cared for 40 patients, from four to nine sick in one family. Everything possible is being done. There are only seven doctors in the city."(fn6)

It is impossible to predict how severe the impact of a new pandemic is likely to be because the medical world does not know how virulent a new strain is until it mutates. While there is some comfort in the fact that a virus is unlikely to be a successful pandemic if it kills all of its hosts, the fact that the mutation cannot be predicted also means that a vaccine cannot be developed until after the actual mutation occurs. Although the technology is improving, there is still a lag time of approximately four to six months between identification of a new influenza virus and the ability to produce a vaccine. Although there are now anti-viral medications, such as Tamiflu or Relenza, that may provide some protection while they are being taken, or that may assist an infected person's ability to overcome the virus, there is no guarantee that these medications will work against a specific mutated strain of a virus in the future.

Against this backdrop, what then are the challenges for the legal profession in facing a situation in which 30 to 40 percent of the population is either sick or has been exposed to a pandemic influenza virus? There is not a definite answer to this question, but the three following areas merit discussion. The first topic is the availability and practicality of using isolation and quarantine laws in a pandemic situation. Second, is the importance of having business plans in order to assure continuation of quality level legal service for clients, as well as individual plans for personal and family well-being. Finally, there are possible shifts in the demand for legal services that might result from a pandemic.

  1. RSA 141-C: Quarantine and Isolation

    In November 2005 the New Hampshire Department of Safety, Bureau of Emergency Management(fn7) and the New Hampshire Department of Health and Human Services (DHHS), Division of Public Health, jointly conducted a pandemic influenza exercise. The exercise was based on a fact scenario in which avian flu arrived in New Hampshire via a college student traveling by bus from Canada to Durham after visiting Indonesia, where the WHO had just confirmed cases of human-to-human transmission of the virus. The fact scenario included no other known confirmed cases of avian flu in the United States. While this was an extremely valuable exercise, it is highly improbable that the first diagnosed case of avian flu will actually occur in New Hampshire. However, even based on this scenario, mandatory isolation and quarantine was not used on a large-scale basis to respond to the influenza outbreak.

    By definition a pandemic occurs over a wide geographic area and affects a high percentage of the population. In order for isolation and quarantine to be effective, the sick individuals would need to be isolated. A thorough investigation would need to be done to find all people that the sick person had contact with for the time period that they may have been infectious, which may be several days. All of those people would then potentially be quarantined.(fn8) In a pandemic situation it will probably not be the best, or most effective use of public health resources to continue to investigate and issue mandatory quarantine or isolation orders in more than the first few cases.

    However, the authority to order mandatory quarantine or isolation does exist as provided in RSA 141-C. This statute was updated in 2002 to provide adequate due process protections, which are discussed below.

    "Isolation" means the separation, for the period of...

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