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

More documents

Recommendations

Info

§ 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 32
NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL § 1.62 may order school officials to exclude from attendance all students without documentation of immunity]. See also Jacobson v. Massachusetts, 197 U.S. 11 (1905) [upholding mandatory participation in smallpox vaccination program as a reasonable use of state police power to protect the public health]. A state may constitutionally mandate vaccination even for those who object based upon religious belief. Prince v. Commonwealth of Massachusetts, 321 U.S. 158, 166-67 (1944). But see PHL § 2164(9) [requirement in New York that children be vaccinated against certain diseases in order to attend school is not applicable to children whose parents “hold genuine and sincere religious beliefs which are contrary to the practices herein required”]. Commentary The statutory authorization for mandatory treatment as a method to control communicable diseases is tempered by the due process requirement that this treatment be the “least restrictive alternative.” Where there is a finding that a communicable disease poses a public health threat, the court will have to examine whether the threat can be contained by isolation rather than mandatory treatment. This may be a particularly viable alternative where a person objects to treatment or vaccination for religious reasons. [1.62] VI. INSPECTIONS AND SEIZURES OF PROPERTY [1.63] A. Authority [1.64] 1. Public Health Law [Communicable Disease] PHL §§ 2100(1) [local health officer “shall guard against the introduction of such communicable diseases . . . by the exercise of proper and vigilant medical inspection and control of all persons and things infected with or exposed to such diseases”]; 2100(2)(b) [local health officer may, “subject to the provisions of the sanitary code, prohibit and prevent all intercourse and communication with or use of infected premises, places and things, and require, and if necessary, provide the means for the thorough purification and cleansing of the same before general intercourse with the same or use thereof shall be allowed”]. See also PHL §§ 206(1)(d) [State Commissioner of Health shall “investigate the causes of disease, epidemics, the sources of mortality, and the effect 33
Page 1 and 2: N E W Y O R K S T A T E PUBLIC HEAL
Page 3 and 4: NEW YORK STATE PUBLIC HEALTH LEGAL
Page 5: EDITORIAL BOARD ROBERT ABRAMS, ESQ.
Page 8 and 9: the Office of Court Administration
Page 11 and 12: CONTENTS Foreword..................
Page 13 and 14: [1.72] 2. Fourteenth Amendment: Pro
Page 45: NEW YORK STATE PUBLIC HEALTH LEGAL
Page 89 and 90: TABLE OF AUTHORITIES CASES Addingto
Page 91 and 92: TABLE OF AUTHORITIES Parratt v. Tay
Page 93 and 94: TABLE OF AUTHORITIES Civil Practice
Page 95 and 96: TABLE OF AUTHORITIES 2.7 ..........
Page 97 and 98:
TABLE OF AUTHORITIES 2141 .........
Page 99:
TABLE OF AUTHORITIES 11.23(f) .....
Page 102:
NEW YORK STATE PUBLIC HEALTH LEGAL
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?