The Limits of Law in Public The Limits of Law in Public Health Emergencies:Health Emergencies:

Building Resilient CommunitiesBuilding Resilient Communities

Edward P. Richards, JD MPHEdward P. Richards, JD MPHProgram in Law, Science and Public HealthProgram in Law, Science and Public Health

LSU School of Law LSU School of Law http://biotech.law.lsu.edu http://biotech.law.lsu.edu

Learning ObjectivesLearning Objectives

Why legal authority in emergencies is very Why legal authority in emergencies is very broadbroad

Why legal authority is usually the wrong Why legal authority is usually the wrong questionquestion

Moving to all-hazards planningMoving to all-hazards planningMoving beyond all-hazards planning to Moving beyond all-hazards planning to

resilient communitiesresilient communitiesClose with a Q & A sessionClose with a Q & A session

So, Can I Shoot Them?So, Can I Shoot Them?

Think how it is going to Think how it is going to look a year latter in court.look a year latter in court.

Why are You Worried about Legal Why are You Worried about Legal Authority?Authority?

You will be stopped from acting by a judgeYou will be stopped from acting by a judgeYou will be sued later for actingYou will be sued later for actingYou will be prosecuted later for actingYou will be prosecuted later for actingYou are worried that your department will You are worried that your department will

not be paid for the personnel and materiel not be paid for the personnel and materiel used.used.

You are worried about the political fallout You are worried about the political fallout from what you do.from what you do.

The Source of Legal Authority for The Source of Legal Authority for State AgenciesState Agencies

The Constitutional Reservation of Police The Constitutional Reservation of Police Powers to the StatePowers to the StateWhat are the police powers?What are the police powers?

The allocation of the police powers by the The allocation of the police powers by the state constitutionstate constitution

The delegation of the police powers by the The delegation of the police powers by the legislature, if required by the state legislature, if required by the state constitutionconstitution

Do You Need a Detailed Law?Do You Need a Detailed Law?

The courts have upheld public health The courts have upheld public health emergency actions based on broad emergency actions based on broad delegationsdelegations"Do what you need to do to protect us""Do what you need to do to protect us"

This deference is greatest in emergenciesThis deference is greatest in emergencies

The Important QuestionsThe Important Questions

Is there really is an emergency?Is there really is an emergency?Are you trying to save lives and/or prevent Are you trying to save lives and/or prevent

injuries?injuries?Do you know what you need to do and Do you know what you need to do and

how to do it, and do you have the how to do it, and do you have the necessary materiel?necessary materiel?

Are you trying to use emergency public Are you trying to use emergency public health power for law enforcement?health power for law enforcement?

Why the Push for Lots of Why the Push for Lots of Emergency Powers Laws?Emergency Powers Laws?

Confusion over legal authority by lawyers Confusion over legal authority by lawyers who are frightened to say yeswho are frightened to say yes

Confusion between lack of authority and Confusion between lack of authority and screwing upscrewing up

Failure to understand that detailed laws Failure to understand that detailed laws pose new riskpose new risk

Real concerns on who is going to pay for Real concerns on who is going to pay for stuffstuff

Why do Legislators Pass Why do Legislators Pass Emergency Powers Laws?Emergency Powers Laws?

Legislature as sausage factoryLegislature as sausage factoryLaw is cheapLaw is cheapPassing the buckPassing the buck

Please sir, can I have some personnel and Please sir, can I have some personnel and rate funding with that responsibility?rate funding with that responsibility?

The Worst CaseThe Worst Case

Lots of very specific laws and Lots of very specific laws and duties, and not enough resources duties, and not enough resources

to do the job.to do the job.

Moving to All Hazards Moving to All Hazards PlanningPlanning

What We Do WellWhat We Do WellTraditional Emergency ResponseTraditional Emergency Response

Geographically limitedGeographically limitedCrime scenesCrime scenesTornadosTornadosDerailed trainsDerailed trains

Temporarily limitedTemporarily limitedNo one is staffed to run at 100% mobilizationNo one is staffed to run at 100% mobilizationMost people have multiple dutiesMost people have multiple duties

Relatively frequent eventsRelatively frequent events

What We Do Not Do WellWhat We Do Not Do Well

Wide geographic regionWide geographic region Long time frameLong time frame Significant displaced populationSignificant displaced population Maintain readiness for long periods without Maintain readiness for long periods without

eventseventsTraining and materiel costsTraining and materiel costsLoss of public attentionLoss of public attention

The pandemic flu problemThe pandemic flu problem

All Hazards PlanningAll Hazards Planning

Generalize plans so that planning for the Generalize plans so that planning for the federal crisis de jure provides real benefitsfederal crisis de jure provides real benefits

Many of you have started doing thisMany of you have started doing thisExamplesExamples

Use pandemic flu planning to address the Use pandemic flu planning to address the yearly flu pandemicyearly flu pandemic

Use terrorist attack planning to educate the Use terrorist attack planning to educate the community about risks such as chemical plant community about risks such as chemical plant accidentsaccidents

Why All Hazards?Why All Hazards?

Difficult to maintain readiness for a low Difficult to maintain readiness for a low probability eventprobability eventPlan must provide short term benefits to be Plan must provide short term benefits to be

supported in the long termsupported in the long term Impossible to change behavior patterns on Impossible to change behavior patterns on

short noticeshort noticePlan must incorporate new behaviors and Plan must incorporate new behaviors and

attitudes into everyday situationsattitudes into everyday situations

Example: All Hazards Planning Example: All Hazards Planning for Pandemic Flufor Pandemic Flu

Institute vaccination programs for all Institute vaccination programs for all recommended adult immunizationsrecommended adult immunizations

Address policies that encourage employees to Address policies that encourage employees to work sickwork sick

Develop and implement workplace surveillance Develop and implement workplace surveillance for infectious disease risksfor infectious disease risks

Include families in these plans because officers Include families in these plans because officers cannot work effectively if their families are at riskcannot work effectively if their families are at risk

Management Oversight Management Oversight AdvantagesAdvantages

Provides measurable outcomes, which Provides measurable outcomes, which disaster only planning does notdisaster only planning does not

Provides an economic and workplace Provides an economic and workplace benefits which will make the program benefits which will make the program easier to continueeasier to continue

Requires policies to be worked out with Requires policies to be worked out with unions and other stakeholdersunions and other stakeholdersAssures buy inAssures buy in Identifies problemsIdentifies problems

The Next Step:The Next Step:Resilient CommunitiesResilient Communities

Bring All Hazards Planning for Wide Bring All Hazards Planning for Wide Scale Public Health Emergencies to Scale Public Health Emergencies to

the Communitythe Community

What is a Wide Scale Public What is a Wide Scale Public Health Emergency?Health Emergency?

Long termLong term Days to longerDays to longer Depletes manpower and resourcesDepletes manpower and resources The affected population requires supportThe affected population requires support

WidespreadWidespread Affects a region or significant urban areaAffects a region or significant urban area Affects everyone, including the police and public Affects everyone, including the police and public

health personnelhealth personnel

Significant RiskSignificant Risk

ExamplesExamples

EpidemicEpidemicBird fluBird flu

Wide area hazmat incident with long term Wide area hazmat incident with long term risksrisksAnthraxAnthraxDirty bombDirty bomb

Natural disasterNatural disasterHurricanes, very severe winter stormsHurricanes, very severe winter stormsEarthquakesEarthquakes

Limited Response Options in Limited Response Options in Public Health EmergenciesPublic Health Emergencies

You cannot shoot people who are just You cannot shoot people who are just trying to take care of their familiestrying to take care of their families

You cannot arrest large numbers of You cannot arrest large numbers of persons to restore orderpersons to restore order

You cannot occupy significant territoryYou cannot occupy significant territoryYou cannot begin to supply basic You cannot begin to supply basic

necessities to everyone who is affectednecessities to everyone who is affected

Your People are also VictimsYour People are also Victims

Widespread public health and Widespread public health and environmental crises affect law environmental crises affect law enforcement personnel enforcement personnel

Most personnel will look to their families Most personnel will look to their families firstfirstLaw enforcement families cannot be Law enforcement families cannot be

protected outside of the context of protected outside of the context of their communitiestheir communities

Day to Day Life Goes OnDay to Day Life Goes On

No federal plan acknowledges that there No federal plan acknowledges that there are criminals and the homelessare criminals and the homelessBiggest joke - Pandemic flu plan says they will Biggest joke - Pandemic flu plan says they will

close the bordersclose the bordersToo many plans can only be staffed by Too many plans can only be staffed by

assuming that no other law enforcement or assuming that no other law enforcement or first response activities will take placefirst response activities will take placeOnly works for short periodsOnly works for short periods

Why 9/11 is the Wrong ModelWhy 9/11 is the Wrong Model

Deaths, but not injuries - limited impact on Deaths, but not injuries - limited impact on health carehealth care

Relatively small percentage of the Relatively small percentage of the population displaced for a long period of population displaced for a long period of timetime

Relatively little infrastructure destroyedRelatively little infrastructure destroyedNo mitigation strategiesNo mitigation strategies

Why Katrina is a Better ModelWhy Katrina is a Better Model

WidespreadWidespreadLong-termLong-termForeseeableForeseeableThe risks could have been mitigatedThe risks could have been mitigatedThe response needs outstripped all The response needs outstripped all

available resourcesavailable resources

What Do Communities Need in What Do Communities Need in Public Health EmergenciesPublic Health Emergencies

Food, waterFood, waterEnvironmental management such as heatEnvironmental management such as heatTransportation and shelter if an evacuationTransportation and shelter if an evacuationPrimary health carePrimary health careFamily support - where are the kids?Family support - where are the kids?Support of local institutions, not volunteer Support of local institutions, not volunteer

imperialism.imperialism.

Who Will Provide for the Public?Who Will Provide for the Public?

Federal modelFederal modelLocal first respondersLocal first respondersSupported by the military and federal supportSupported by the military and federal support

State ModelsState ModelsPublic health, supported by law enforcementPublic health, supported by law enforcement

RealityReality In most areas the police are the organizations In most areas the police are the organizations

with the most staff and resourceswith the most staff and resources

Who Will Fund This in the Long Who Will Fund This in the Long Term?Term?

The existing money is coming from other The existing money is coming from other essential services that cannot be essential services that cannot be postponed foreverpostponed foreverPriorities will shift as fears of disaster abatePriorities will shift as fears of disaster abateMany health departments are losing net Many health departments are losing net

moneymoneyBottom-line: No one is funding real public Bottom-line: No one is funding real public

supportsupport

Objectives of Resilient Objectives of Resilient CommunitiesCommunities

ReduceReduce the need for support from public the need for support from public servicesservices

ReduceReduce suffering and death suffering and deathReduceReduce the risk of public disorder the risk of public disorderMost important: Most important:

Build trust and credibility so the Build trust and credibility so the community will cooperate with community will cooperate with needed mitigation measuresneeded mitigation measures

Building Blocks for Resilient Building Blocks for Resilient CommunitiesCommunities

Honest Risk CommunicationsHonest Risk Communications

Be realistic about the riskBe realistic about the riskBird flu v. yearly fluBird flu v. yearly fluHurricane v. terrorist attackHurricane v. terrorist attackDo not bet against gravityDo not bet against gravityDo not suppress market risk signalsDo not suppress market risk signals

Just say No to Potemkin planningJust say No to Potemkin planningBig issue in public healthBig issue in public healthHurricane PamHurricane PamBeing a team player puts the public at riskBeing a team player puts the public at risk

Realistic Preventive StrategiesRealistic Preventive Strategies

Must fit in with real household managementMust fit in with real household management ExamplesExamples

GasolineGasoline What to take in evacuationsWhat to take in evacuations How to keep food and water on handHow to keep food and water on hand How to treat water and what is safe to eat when the How to treat water and what is safe to eat when the

refrigerator goes offrefrigerator goes off When to go back and what to do when you get thereWhen to go back and what to do when you get there

Start with Your Own PeopleStart with Your Own People

Get the families of your own people Get the families of your own people involvedinvolvedBuilds support - they become part of the Builds support - they become part of the

solutionsolutionDirect benefits to the departmentDirect benefits to the department

Encourage them to involve their neighborsEncourage them to involve their neighborsStabilizes the neighborhood, making their own Stabilizes the neighborhood, making their own

situation more securesituation more secureDo not be the only person on your block with Do not be the only person on your block with

waterwater

Working with Other OrganizationsWorking with Other Organizations

Find out if your local public health plans Find out if your local public health plans are really staffed and supportedare really staffed and supported

Find out the plans of the local hospitals Find out the plans of the local hospitals and other health care providersand other health care providers

Coordinate with retailersCoordinate with retailersWork with churches and other private Work with churches and other private

organizationsorganizationsWalmart and Home Depot can move goods Walmart and Home Depot can move goods

more effectively than Northcommore effectively than Northcom

Reinforcing the Message when Reinforcing the Message when Disasters are out of FashionDisasters are out of Fashion

Priorities are going to shiftPriorities are going to shiftFEMA has already punted on realistic building FEMA has already punted on realistic building

standards in New Orleans and the Gulf Coaststandards in New Orleans and the Gulf CoastNo politician will keep supporting prevent No politician will keep supporting prevent

measures once the public gets interested measures once the public gets interested in other thingsin other thingsWe have a lot of social problems we have We have a lot of social problems we have

been ignoringbeen ignoringThe problems will still be thereThe problems will still be there

Political BenefitsPolitical Benefits

Most communities do not trust public Most communities do not trust public health (some do not trust the police)health (some do not trust the police)Anti-vaccination forcesAnti-vaccination forcesEquating trans-fat with the plagueEquating trans-fat with the plague Incompetent political appointees in critical Incompetent political appointees in critical

positionspositionsLaw enforcement will bear the risk of failed Law enforcement will bear the risk of failed

public health responsepublic health response