By Charles Toutant, New Jersey Law Journal

The conflict involving Kaci Hickox, the nurse who defied state restrictions on her freedom after treating Ebola patients in Sierra Leone, could yield improvements to the way state governments evaluate public health risks, lawyers said.

While state officials enjoy broad powers to quarantine citizens in order to prevent the spread of disease, any measures they impose must be accomplished using the least restrictive means available under the circumstances, lawyers said. But state officials have had little recent experience in evaluating what measures will protect public health from an epidemic while minimizing impact on the rights of individuals.

Health departments have little experience deciding when to impose quarantines because the last widespread epidemic in the United States was the flu epidemic of 1918, according to William Isele, a health-care lawyer at Archer & Greiner in Princeton, N.J. At that time, entire towns and sections of cities were quarantined to stop the spread of disease, but medical science has advanced dramatically since then, he said. Any consideration of quarantine measures today must respect individuals’ right to due process and conduct a scientific analysis of the circumstances and risks to public health. “Sometimes, in the interest of public welfare, there has to be some public intrusion on individual civil rights, and the laws and the courts look to use the least restrictive measures to protect the public interest,” he said.

On Friday, a state judge in Maine issued a temporary order lifting restrictions on Hickox’s activities, finding the Maine Department of Health and Human Services failed to prove “by clear and convincing evidence that limiting respondent’s movements to the degree requested is necessary to protect other individuals from the dangers of infection.” Noting that the nurse is asymptomatic and not infectious, Judge Charles LaVerdiere reversed a previous order sought by the state, which directed Hickox to stay away from movie theaters and shopping centers, to maintain a three-foot distance from others when in public, and to stay in her hometown of Fort Kent.

Hickox returned to Maine after being subjected to three days of quarantine at a Newark hospital. Although she has no signs of Ebola, state officials said the quarantine was imposed because she had a 101-degree fever when she got off a plane at Newark Liberty International Airport. Gov. Chris Christie vehemently defended the state’s decision to place the woman in quarantine, but she was allowed to return to Maine after she hired a civil rights lawyer and complained to the media about the conditions under which she was being held.

The American Civil Liberties Union of New Jersey has filed records requests with Christie’s office and the state Department of Health to obtain details of the state’s quarantine protocols. “The public needs to be reassured that these policy decisions are being guided by science, not fear,” ACLU-NJ Executive Director Udi Ofer said in a statement.

Ebola has generated a lot of emotion and fear, Isele said, and governors and state officials want to make sure the disease does not become an epidemic in the United States. Still, “we need to rely on the science here and not rely on emotion and fear,” he said.

New Jersey’s handling of the Hickox situation has been “ad hoc,” in the absence of clear protocols for evaluating people traveling here from regions coping with an epidemic, said Frank Ciesla, a health care lawyer at Giordano, Halleran & Ciesla in Red Bank, N.J. And guidelines from the Centers for Disease Control and Prevention have been less than comprehensive, he said. As a result, New Jersey officials’ response to the arrival of Hickox was “being done, for lack of a better term, by press release, than by a thought-through process,” Ciesla said.

“There’s an awful lot to be learned” from Hickox’s case, Ciesla said. “This episode should evolve into a set of procedures that are much clearer than they are at this point in time,” Ciesla said.

New Jersey “overreached” in its handling of the nurse by placing her in unnecessarily harsh conditions, said Jonathan Hafetz, a professor at Seton Hall University School of Law who specializes in national security issues. While states have broad authority to impose restrictions on people whose travel could pose a risk to public safety, there must be a reasonable connection between the risk posed by an individual and measures to curtail his or her freedom, he said. While much is still not known about Ebola, and uncertainty favors a proactive response, “you have to be guided by science,” he said.

New Jersey’s treatment of Hickox is a concern because it may deter other health-care professionals from going to West Africa to help with the Ebola outbreak, Hafetz said. “The only way we can really be safe is to eliminate Ebola. They have to strike the right balance between protecting the public in the short term and not preventing doctors from going over there,” he said.

Hickox has threatened to file suit against New Jersey over the involuntary confinement, but nothing has materialized so far and lawyers said she has little chance of winning damages. Isele, a former state Ombudsman for the Institutionalized Elderly from 1999-2007, said Hickox would have to demonstrate that arbitrary and capricious action was taken in order to surmount the state’s immunity to suit, which would be a high standard to meet. Hafetz agreed, but added that a suit against New Jersey would bring attention to the issue and contribute to the public debate.

IMAGE: The Ebola virus under a microscope CDC Public Health Image Library

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