NYS Public Health Legal Manual: A Guide for Judges, Attorneys ...

NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL § 1.60
including directly observed therapy to treat the disease . . . .”]. Specific
diseases: PHL § 2303(1) [local health officers may require any person
with communicable venereal disease “to submit to such treatment or isolation,
or both, as may be necessary to terminate such communicable
state”]. • New York City: Health Code [24 RCNY] § 11.21(d)(2) and (3)
[Commissioner may seek court order requiring a person with active tuberculosis
“to complete an appropriate prescribed course of medication for
tuberculosis” or, if noncompliant, “to follow a course of directly observed
therapy”].
Commentary
Effective control of communicable diseases may require that
persons be subject to mandatory examination and treatment. The
Public Health Law authorizes examination and treatment obliquely
[§§ 2100(1): “proper and vigilant medical inspection”; 2100(2)(a):
“care”]. The more contemporary New York City Health Code
authorizes both examination and treatment directly, with the only
requirement being that the person, upon request, be given “an
opportunity to be heard.” Health Code [24 RCNY] § 11.23(k). The
Public Health Law addresses these areas with more specificity only
when dealing with individual conditions such as tuberculosis and
venereal disease.
[1.60] B. Constitutional Restraints: Examinations
The Fourth Amendment to the United States Constitution protects the
right of people “to be secure in their persons, houses, papers and effects,
against unreasonable searches and seizures” and requires that no warrants
may issue except “upon probable cause.” See also N.Y. Const., Art. I, § 12
[same]. Intrusions into the human body are “searches” governed by the
Fourth Amendment. See People v. More, 97 N.Y.2d 209, 212-13 (2002)
[body cavity search]; Patchogue-Medford Congress of Teachers v. Board
of Education, 70 N.Y.2d 57 (1987) [urine test]; Nicholas v. Goord, 430
F.3d 652 (2d Cir. 2005) [DNA test—blood test or cheek swab]. See, in
general, Schmerber v. California, 384 U.S. 757 (1966).
The touchstone of the Fourth Amendment is reasonableness, and the
reasonableness of a search is determined by “assessing, on the one hand,
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