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The Honolulu Advertiser
Posted on: Monday, November 19, 2001

Department of Health seeks sweeping powers

By Alice Keesing
Advertiser Health Writer

The Department of Health says it needs sweeping powers to prepare for a bioterrorist attack, including the authority to take over hospitals or clinics, the right to mandate testing and treatment, and access to patient records.

Microbiologist Susan Naka demonstrates how to test for biohazards, such as anthrax, on a piece of mail. Biological hazards have prompted the Department of Health to seek powers that would allow it to take over hospitals and clinics, and gain access to patient records.

Advertiser library photo • Oct. 24, 2001

The department is working on proposed legislation that would grant it such powers; powers that Health Director Bruce Anderson describes as "critical" if Hawai'i were to face a terrorist assault from a deadly disease such as smallpox.

"I think this will be one of the most important issues we'll discuss this year at the Legislature," he said.

Anderson is also anticipating a vigorous debate over the bill, which raises concerns such as the invasion of individual rights to protect the rights of society.

"The states need to be empowered on an emergency basis to deal with these sorts of infectious problems, which can literally spread like wildfire in the population," said Edwin Cadman, University of Hawai'i medical school dean. "It needs to be contained just like fires do. ... But there's a fine line between personal rights and the rights of society."

There is widespread agreement that the political landscape changed after Sept. 11 and that governments need the power to respond to previously unimagined threats. A recent state Health Department report warns doctors to be on the alert for bioterrorism agents such as smallpox, plague and botulism.

Such diseases could kill many people, and the key is a quick response, experts say. With a disease such as smallpox, the window to prevent a major outbreak is a matter of days.

"These epidemics, if they're not caught in the beginning, the genie is out of the bottle," Cadman said.

Model bill under review

When it comes to being prepared, Cadman believes Hawai'i ranks in the top 10 states, thanks in part to a system of reporting that gives health officials an early warning if symptoms begin to appear in patients.

Nonetheless, all states are vulnerable to attack from smallpox, Cadman said, because people have not been vaccinated against the disease, which authorities thought had been wiped out in the 1970s.

To help states respond, the Centers for Disease Control sponsored a draft model bill that would give public health authorities the powers needed to respond to a bioterrorist attack.

State health officials are reviewing The Model State Emergency Health Powers Act and crafting a Hawai'i version of the bill. If it meets the governor's approval, it would be presented in the next legislative session.

The CDC version of the bill would give public health officials the power to gather information, including patient records; to quarantine or isolate infected people; take over medical facilities; appropriate medical supplies; and destroy contaminated property.

"Given the scenarios that we have seen since Sept. 11, I think these authorities are critical to our being able to respond appropriately," Anderson said. "Even in dealing with the dengue problem, we had some resistance from individuals as it relates to treating their homes. These authorities would allow us to do what is necessary to prevent the spread of disease. When you're dealing with a problem like smallpox, you don't want to fool around."

The department already has some of the authorities in the bill, such as the power to quarantine, but Anderson said existing laws are confusing, conflicting and in some cases more than 100 years old.

Brent White, legal director of the Hawai'i chapter of the American Civil Liberties Union, agrees that such powers would be necessary in the event of a highly contagious outbreak such as smallpox. However, he said he hopes the Department of Health will narrow the scope of its bill.

"In the wake of these types of terrorism attacks and bioterrorism scares, public authorities and officials are more often quick to pass laws just because they want to do something about it," White said. "Whereas it comes from good intentions, it's especially important to pay attention to the civil liberty and civil rights implications of the laws we pass in haste."

Vague terminology questioned

One problem with the model bill, he said, is that it contains vague terms such as "epidemic" and "pandemic."

"There are all types of health epidemics that should not constitute the kind of emergency that would give these kind of broad, sweeping powers," said White, who gave anthrax as an example because it is not contagious.

White also is concerned about the possibility of opening up patients' records. He suggested the bill could be narrowed to include specifics on what kind of information is made available and to whom.

Forcing people to be tested or treated could also create problems, he noted, because it may violate some religious beliefs.

"I certainly wouldn't take the position that there is never a circumstance where these types of actions might be appropriate, but it should clearly be as a last resort," he said.

Rep. Dennis Arakaki, chairman of the House Health Committee, said he supports the intent of such a bill, but also wants assurances.

"My concern is for the long term, to make sure these are only emergency and temporary measures, and there's some accountability in terms of the action that is taken," said Arakaki, D-28th (Kalihi Valley, Kam Heights). "I would be very concerned about things like patient confidentiality, because what we don't want is to have people discriminated against. ... Once a scare goes out it's really hard to control the fear and paranoia and anxiety, and that may affect people's judgment of other people."

Ensuring patient rights

The model bill does contain a sunset provision for the emergency powers, suggesting that they end 30 days after an emergency is declared unless renewed by the governor.

Anderson said the department already is examining concerns and will be talking to interested groups to ensure patient rights are protected. Discussions also are planned with the medical community.

"We want to hear what their concerns are," said Anderson, who also wants a provision to ensure hospitals are paid if their facilities are taken over. That would only happen in the event of a large-scale outbreak, he said.

And the model bill does give individuals some rights that they currently don't have, he said, including the right to appeal decisions.

"Although it seems somewhat draconian as we look at the basic provisions, there are actually protections built into this model law that would be of benefit in ensuring people's rights aren't abused in the process," he said.

Reach Alice Keesing at akeesing@honoluluadvertiser.com or 525-8014.