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

§ 1.61 NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL
harm to “self” presumably would not apply where the person is of sound
mind or otherwise capable of making an informed and reasoned judgment
as to treatment). This criterion would require persons to “submit to medical
procedures in order to eliminate a health threat to the community.”
Matter of Storar, supra, 52 N.Y.2d at 377. Mandatory treatment then may
continue “as long as the emergency persists.” Rivers v. Katz, supra, 67
N.Y.2d at 496. See Matter of Sampson, 29 N.Y.2d 900, 901 (1972) [noting
government right to direct treatment of child to protect public health].
In making the determination whether mandatory treatment is constitutional,
courts apply the same substantive and procedural due process standards
as they would for any serious deprivation of liberty, i.e., the same
standards applicable to isolation and quarantine. See IV(G), supra. These
include a finding that the threat to the community is supported by “clear
and convincing evidence,” and that mandatory treatment is the “least
restrictive alternative.” In re K.L., supra, 1 N.Y.3d at 372; Rivers v. Katz,
supra, 67 N.Y.2d at 497-98. And the same procedural due process balancing
test for the timing of the holding of a hearing for judicial review must
apply as well. In re K.L., supra, 1 N.Y.3d at 373-74. See also New York
City Health Code [24 RCNY] § 11.23(l) [requiring a court order in New
York City for the forcible administration of any medication].
The principles governing mandatory treatment apply as well to mandatory
vaccination, which is but a subclass of treatment applicable to persons
exposed to or potentially exposed to contagious diseases. To the
extent that mandatory vaccination is not foreclosed by law (and so would
first require a declaration of a health emergency and an order suspending
that law (see VIII, infra)), there would have to be a balancing between a
compelling government interest versus a fundamental personal right and,
where there is a communicable disease health threat, that balance may
well shift to the government. Eichner v. Dillon, 73 A.D.2d 431, 455 (2d
Dep’t 1980), mod. sub nom. Matter of Storar, 52 N.Y.2d 363 (1981) [an
individual “may not refuse to be vaccinated where the refusal presents a
threat to the community at large”]; Ritterband v. Axelrod, 149 Misc. 2d
135 (Sup. Ct., Albany Co., 1990) [rejecting constitutional challenge to
DOH regulations requiring mandatory immunizations of health care
workers for rubella]. See 10 NYCRR § 66-1.10 [in the event of an outbreak
of vaccine-preventable diseases, the State Commissioner of Health
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