9. The Limits of Law in Public Health Emergencies: Building Resilient Communities Edward P. Richards, JD MPH Program in Law, Science and Public Health LSU School of Law http://biotech.law.lsu.edu

10. Learning Objectives Why legal authority in emergencies is very broad Why legal authority in emergencies is very broad Why legal authority is usually the wrong question Why legal authority is usually the wrong question Moving to all-hazards planning Moving to all-hazards planning Moving beyond all-hazards planning to resilient communities Moving beyond all-hazards planning to resilient communities Close with a Q & A session Close with a Q & A session

11. So, Can I Shoot Them? Think how it is going to look a year latter in court.

12. Why are You Worried about Legal Authority? You will be stopped from acting by a judge You will be stopped from acting by a judge You will be sued later for acting You will be sued later for acting You will be prosecuted later for acting You will be prosecuted later for acting You are worried that your department will not be paid for the personnel and materiel used. You are worried that your department will not be paid for the personnel and materiel used. You are worried about the political fallout from what you do. You are worried about the political fallout from what you do.

13. The Source of Legal Authority for State Agencies The Constitutional Reservation of Police Powers to the State The Constitutional Reservation of Police Powers to the State What are the police powers? What are the police powers? The allocation of the police powers by the state constitution The allocation of the police powers by the state constitution The delegation of the police powers by the legislature, if required by the state constitution The delegation of the police powers by the legislature, if required by the state constitution

14. Do You Need a Detailed Law? The courts have upheld public health emergency actions based on broad delegations The courts have upheld public health emergency actions based on broad delegations "Do what you need to do to protect us" "Do what you need to do to protect us" This deference is greatest in emergencies This deference is greatest in emergencies

15. The Important Questions Is there really is an emergency? Is there really is an emergency? Are you trying to save lives and/or prevent injuries? Are you trying to save lives and/or prevent injuries? Do you know what you need to do and how to do it, and do you have the necessary materiel? Do you know what you need to do and how to do it, and do you have the necessary materiel? Are you trying to use emergency public health power for law enforcement? Are you trying to use emergency public health power for law enforcement?

16. Why the Push for Lots of Emergency Powers Laws? Confusion over legal authority by lawyers who are frightened to say yes Confusion over legal authority by lawyers who are frightened to say yes Confusion between lack of authority and screwing up Confusion between lack of authority and screwing up Failure to understand that detailed laws pose new risk Failure to understand that detailed laws pose new risk Real concerns on who is going to pay for stuff Real concerns on who is going to pay for stuff

17. Why do Legislators Pass Emergency Powers Laws? Legislature as sausage factory Legislature as sausage factory Law is cheap Law is cheap Passing the buck Passing the buck Please sir, can I have some personnel and rate funding with that responsibility?

18. The Worst Case Lots of very specific laws and duties, and not enough resources to do the job.

19. Moving to All Hazards Planning

20. What We Do Well Traditional Emergency Response Geographically limited Geographically limited Crime scenes Crime scenes Tornados Tornados Derailed trains Derailed trains Temporarily limited Temporarily limited No one is staffed to run at 100% mobilization No one is staffed to run at 100% mobilization Most people have multiple duties Most people have multiple duties Relatively frequent events Relatively frequent events

21. What We Do Not Do Well Wide geographic region Wide geographic region Long time frame Long time frame Significant displaced population Significant displaced population Maintain readiness for long periods without events Maintain readiness for long periods without events Training and materiel costs Training and materiel costs Loss of public attention Loss of public attention The pandemic flu problem The pandemic flu problem

22. All Hazards Planning Generalize plans so that planning for the federal crisis de jure provides real benefits Generalize plans so that planning for the federal crisis de jure provides real benefits Many of you have started doing this Many of you have started doing this Examples Examples Use pandemic flu planning to address the yearly flu pandemic Use pandemic flu planning to address the yearly flu pandemic Use terrorist attack planning to educate the community about risks such as chemical plant accidents Use terrorist attack planning to educate the community about risks such as chemical plant accidents

23. Why All Hazards? Difficult to maintain readiness for a low probability event Difficult to maintain readiness for a low probability event Plan must provide short term benefits to be supported in the long term Plan must provide short term benefits to be supported in the long term Impossible to change behavior patterns on short notice Impossible to change behavior patterns on short notice Plan must incorporate new behaviors and attitudes into everyday situations Plan must incorporate new behaviors and attitudes into everyday situations

24. Example: All Hazards Planning for Pandemic Flu Institute vaccination programs for all recommended adult immunizations Institute vaccination programs for all recommended adult immunizations Address policies that encourage employees to work sick Address policies that encourage employees to work sick Develop and implement workplace surveillance for infectious disease risks Develop and implement workplace surveillance for infectious disease risks Include families in these plans because officers cannot work effectively if their families are at risk Include families in these plans because officers cannot work effectively if their families are at risk

25. Management Oversight Advantages Provides measurable outcomes, which disaster only planning does not Provides measurable outcomes, which disaster only planning does not Provides an economic and workplace benefits which will make the program easier to continue Provides an economic and workplace benefits which will make the program easier to continue Requires policies to be worked out with unions and other stakeholders Requires policies to be worked out with unions and other stakeholders Assures buy in Assures buy in Identifies problems Identifies problems

26. The Next Step: Resilient Communities Bring All Hazards Planning for Wide Scale Public Health Emergencies to the Community

27. What is a Wide Scale Public Health Emergency? Long term Long term Days to longer Days to longer Depletes manpower and resources Depletes manpower and resources The affected population requires support The affected population requires support Widespread Widespread Affects a region or significant urban area Affects a region or significant urban area Affects everyone, including the police and public health personnel Affects everyone, including the police and public health personnel Significant Risk Significant Risk

28. Examples Epidemic Epidemic Bird flu Bird flu Wide area hazmat incident with long term risks Wide area hazmat incident with long term risks Anthrax Anthrax Dirty bomb Dirty bomb Natural disaster Natural disaster Hurricanes, very severe winter storms Hurricanes, very severe winter storms Earthquakes Earthquakes

29. Limited Response Options in Public Health Emergencies You cannot shoot people who are just trying to take care of their families You cannot shoot people who are just trying to take care of their families You cannot arrest large numbers of persons to restore order You cannot arrest large numbers of persons to restore order You cannot occupy significant territory You cannot occupy significant territory You cannot begin to supply basic necessities to everyone who is affected You cannot begin to supply basic necessities to everyone who is affected

30. Your People are also Victims Widespread public health and environmental crises affect law enforcement personnel Widespread public health and environmental crises affect law enforcement personnel Most personnel will look to their families first Most personnel will look to their families first Law enforcement families cannot be protected outside of the context of their communities Law enforcement families cannot be protected outside of the context of their communities

31. Day to Day Life Goes On No federal plan acknowledges that there are criminals and the homeless No federal plan acknowledges that there are criminals and the homeless Biggest joke - Pandemic flu plan says they will close the borders Biggest joke - Pandemic flu plan says they will close the borders Too many plans can only be staffed by assuming that no other law enforcement or first response activities will take place Too many plans can only be staffed by assuming that no other law enforcement or first response activities will take place Only works for short periods Only works for short periods

32. Why 9/11 is the Wrong Model Deaths, but not injuries - limited impact on health care Deaths, but not injuries - limited impact on health care Relatively small percentage of the population displaced for a long period of time Relatively small percentage of the population displaced for a long period of time Relatively little infrastructure destroyed Relatively little infrastructure destroyed No mitigation strategies No mitigation strategies

33. Why Katrina is a Better Model Widespread Widespread Long-term Long-term Foreseeable Foreseeable The risks could have been mitigated The risks could have been mitigated The response needs outstripped all available resources The response needs outstripped all available resources

34. What Do Communities Need in Public Health Emergencies Food, water Food, water Environmental management such as heat Environmental management such as heat Transportation and shelter if an evacuation Transportation and shelter if an evacuation Primary health care Primary health care Family support - where are the kids? Family support - where are the kids? Support of local institutions, not volunteer imperialism. Support of local institutions, not volunteer imperialism.

35. Who Will Provide for the Public? Federal model Federal model Local first responders Local first responders Supported by the military and federal support Supported by the military and federal support State Models State Models Public health, supported by law enforcement Public health, supported by law enforcement Reality Reality In most areas the police are the organizations with the most staff and resources In most areas the police are the organizations with the most staff and resources

36. Who Will Fund This in the Long Term? The existing money is coming from other essential services that cannot be postponed forever The existing money is coming from other essential services that cannot be postponed forever Priorities will shift as fears of disaster abate Priorities will shift as fears of disaster abate Many health departments are losing net money Many health departments are losing net money Bottom-line: No one is funding real public support Bottom-line: No one is funding real public support

37. Objectives of Resilient Communities Reduce the need for support from public services Reduce the need for support from public services Reduce suffering and death Reduce suffering and death Reduce the risk of public disorder Reduce the risk of public disorder Most important: Most important: Build trust and credibility so the community will cooperate with needed mitigation measures Build trust and credibility so the community will cooperate with needed mitigation measures

38. Building Blocks for Resilient Communities

39. Honest Risk Communications Be realistic about the risk Be realistic about the risk Bird flu v. yearly flu Bird flu v. yearly flu Hurricane v. terrorist attack Hurricane v. terrorist attack Do not bet against gravity Do not bet against gravity Do not suppress market risk signals Do not suppress market risk signals Just say No to Potemkin planning Just say No to Potemkin planning Big issue in public health Big issue in public health Hurricane Pam Hurricane Pam Being a team player puts the public at risk Being a team player puts the public at risk

40. Realistic Preventive Strategies Must fit in with real household management Must fit in with real household management Examples Examples Gasoline Gasoline What to take in evacuations What to take in evacuations How to keep food and water on hand How to keep food and water on hand How to treat water and what is safe to eat when the refrigerator goes off How to treat water and what is safe to eat when the refrigerator goes off When to go back and what to do when you get there When to go back and what to do when you get there

41. Start with Your Own People Get the families of your own people involved Get the families of your own people involved Builds support - they become part of the solution Builds support - they become part of the solution Direct benefits to the department Direct benefits to the department Encourage them to involve their neighbors Encourage them to involve their neighbors Stabilizes the neighborhood, making their own situation more secure Stabilizes the neighborhood, making their own situation more secure Do not be the only person on your block with water Do not be the only person on your block with water

42. Working with Other Organizations Find out if your local public health plans are really staffed and supported Find out if your local public health plans are really staffed and supported Find out the plans of the local hospitals and other health care providers Find out the plans of the local hospitals and other health care providers Coordinate with retailers Coordinate with retailers Work with churches and other private organizations Work with churches and other private organizations Walmart and Home Depot can move goods more effectively than Northcom Walmart and Home Depot can move goods more effectively than Northcom

43. Reinforcing the Message when Disasters are out of Fashion Priorities are going to shift Priorities are going to shift FEMA has already punted on realistic building standards in New Orleans and the Gulf Coast FEMA has already punted on realistic building standards in New Orleans and the Gulf Coast No politician will keep supporting prevent measures once the public gets interested in other things No politician will keep supporting prevent measures once the public gets interested in other things We have a lot of social problems we have been ignoring We have a lot of social problems we have been ignoring The problems will still be there The problems will still be there

44. Political Benefits Most communities do not trust public health (some do not trust the police) Most communities do not trust public health (some do not trust the police) Anti-vaccination forces Anti-vaccination forces Equating trans-fat with the plague Equating trans-fat with the plague Incompetent political appointees in critical positions Incompetent political appointees in critical positions Law enforcement will bear the risk of failed public health response Law enforcement will bear the risk of failed public health response