Ethical and Legal Issues in Influenza Pandemic Alicia Ouellette Albany Law School

Five (of many more) issues Hazardous duty by health care providers Hazardous duty by health care providers Resource allocation: vaccinations Resource allocation: vaccinations Identification: naming of names Identification: naming of names Civil confinement: isolation and quarantine Civil confinement: isolation and quarantine Travel and border controls Travel and border controls

Competing values PUBLIC GOOD -versus- INDIVIDUAL RIGHTS

Public good Heath and safety Heath and safety Individual patients Individual patients Public at large Public at large Health care providers Health care providers Vulnerable populations Vulnerable populations Integrity of process Integrity of process

Individual rights Privacy Privacy Autonomy Autonomy Bodily integrity Bodily integrity Liberty interests Liberty interests Equity Equity Travel Travel

Allocation of vaccines: criteria for prioritization Historically, priority is individuals at high risk Historically, priority is individuals at high risk of hospitalization of hospitalization Risk of death Risk of death Beneficence-based commitment (promote good and remove harm) – likelihood of medical benefit Beneficence-based commitment (promote good and remove harm) – likelihood of medical benefit Utility-based commitment Utility-based commitment

Triage and vaccine prioritization Are we vaccinating those most at risk of severe illness or life lost Are we vaccinating those most at risk of severe illness or life lost OR OR Preventing harm, maintaining “fighting strength” by vaccinating those most likely to spread disease? Preventing harm, maintaining “fighting strength” by vaccinating those most likely to spread disease?

Objectives for pandemic vaccination Will Primary Goal be: to prevent overall # of deaths? to prevent overall # of deaths? to prevent deaths in high risk pts? to prevent deaths in high risk pts? To decrease gross attack rates? To decrease gross attack rates? To decrease severe morbidity? To decrease severe morbidity? To decrease disruptions of essential services? To decrease disruptions of essential services? See Meltzer, Cox, Fukuda 1999

Prioritization of limited vaccine Varying Strategies Varying Strategies Those at High Risk for influenza-related complications, including death Those at High Risk for influenza-related complications, including death determining who is at highest risk as dependent on epidemiology of pandemic determining who is at highest risk as dependent on epidemiology of pandemic Those in essential community services Those in essential community services Those most likely to disseminate virus Those most likely to disseminate virus

Identification: Surveillance and Contact Tracing Reporting cases essential public health strategy Reporting cases essential public health strategy Tension with claims of privacy Tension with claims of privacy Economic impact of reporting for geographic and ethnic communities Economic impact of reporting for geographic and ethnic communities

Identification: Surveillance and Contact Tracing Appropriate policy depends on scale of epidemic Appropriate policy depends on scale of epidemic

Name-based identification Acceptable limit on privacy when: Acceptable limit on privacy when: State demonstrates an important need to know and intervene; State demonstrates an important need to know and intervene; Transparency regarding uses, disclosure and harm; Transparency regarding uses, disclosure and harm; Consultation with relevant communities; Consultation with relevant communities; Data is used for legitimate health purposes only. Data is used for legitimate health purposes only.

Isolation and Quarantine Legal and ethical to avert significant risks of transmission Legal and ethical to avert significant risks of transmission Significant issues: Significant issues: Loss of liberty Loss of liberty Social and economic harm Social and economic harm Potential for discrimination Potential for discrimination

Isolation and Quarantine Policies Scientific assessment of risk Scientific assessment of risk Target restrictive measures where possible Target restrictive measures where possible Must provide safe and habitable environment Must provide safe and habitable environment Social justice paramount Social justice paramount Procedural due process Procedural due process Least restrictive alternative Least restrictive alternative

Bounding Precaution Safeguarding individual rights Safeguarding individual rights Least intrusive alternative Least intrusive alternative Fairness and justice Fairness and justice Transparency Transparency

Balancing Precaution, Rights, Justice, and Transparency Use voluntary means where possible. Use voluntary means where possible. Mandatory measures only where necessary. Mandatory measures only where necessary. Elicit voluntary cooperation through information, solicitation, and collaboration. Elicit voluntary cooperation through information, solicitation, and collaboration.