Kaci Hickox followed through Thursday morning on her pledge to defy home quarantine in Maine, leaving her residence for a bike ride with her boyfriend.
Gov. Paul LePage has said the state will pursue legal action to enforce a 21-day quarantine on Hickox, a nurse who returned to Fort Kent after treating Ebola patients in West Africa. So what happens now?
Under Maine law, the state could seek a court order to enforce the quarantine. But first it has to establish Hickox poses a “public health threat,” as the term is defined in statute:
“Public health threat means any condition or behavior that can reasonably be expected to place others at significant risk of exposure to a toxic agent or environmental hazard or infection with a notifiable disease or condition.”
For further explanation, I turned to Paul Gauvreau, who represented the Maine Center for Disease Control and Prevention for a decade with the Maine Attorney General’s Office. He retired in 2012, and now works part time for the AG’s office.
Gauvreau handled the 2006 case involving the arrest of a Portland man with tuberculosis that I wrote about earlier this week.
Here’s a potential sticking point: Maine statute specifically references behavior by “an infected person.” But Hickox hasn’t been diagnosed with Ebola. Preliminary tests came back negative for the virus and she has no symptoms. Can the state prove an individual with no diagnosis or signs of illness poses a public health threat?
“We never had a case that I’ve been involved in, when I was representing CDC, that we didn’t have a confirmed case,” Gauvreau said.
There could be room in the statute for a court order if a person was exposed to an infectious illness and failed or refused to be in contact with authorities, said Gauvreau, who declined to speak about Hickox’s case specifically. If the state can’t determine whether a subject has symptoms and is engaging unsafe behaviors, legal action might be warranted, he said.
Hickox has been in contact with Maine health officials, and a woman identified as a CDC worker stopped by her residence Wednesday afternoon.
The state must not only establish that an individual poses an imminent threat of contagion, but also demonstrate that the counter measure it seeks — in Hickox’s case the 21-day quarantine in her home and regular monitoring — is necessary to protect public health and that no less restrictive options are available, Gauvreau said.
Hickox’s lawyers would undoubtedly argue that less restrictive options are available. Hickox has said she’ll agree to monitor herself and will allow public health workers to continue to check on her temperature and health.
“We’re trying to harmonize public safety with personal rights of individuals,” Gauvreau said.
The statute goes on to explain what risky behavior includes: activity known to create a significant risk of transmitting a communicable disease, past behavior that indicates the person will engage in that kind of activity, failing to cooperate with a “departmental contact notification program,” or refusing to comply with legal orders to prevent the spread of disease.
If the court grants an order, it would be in effect no longer than 48 hours, Gauvreau said. A hearing before a judge would then be convened to decide whether to continue, modify or vacate the order, he said. Under some circumstances, public health authorities could ask for an order that takes effect immediately, but a hearing would have to be held within 48 hours, he said.
Anyone subject to a court order has a right to legal representation and a say at the hearing.
In instances where individuals defy a court order, an arrest warrant could potentially be filed. But warrants for public health orders, as opposed to criminal warrants, are harder to execute because law enforcement is less familiar with the process, Gauvreau said. Then there’s the matter of protecting the arresting officer from potential infection.
At a Wednesday evening news conference, Department of Health and Human Services Commissioner Mary Mayhew said the Maine attorney general’s office was working on the necessary paperwork to seek a court order, and that the order could be submitted to a judge as soon as Wednesday night. We haven’t seen it yet, but watch bangordailynews.com for updates.