Relying on Good Fortune - Not an Acceptable Preparedness Strategy

When hundreds of people fall ill from a mysterious biological agent, public health and law enforcement agencies work seamlessly to implement the established policies and enforce any necessary quarantine procedures that they have planned and trained for well in advance of the current threat. At least, that is what should happen.

During a short-notice tabletop exercise for the Ebola virus threat in late 2014 in a major metropolitan area, numerous federal, state, local, and private sector partners met to discuss the expanding viral threat and organizational responsibilities. The conversations were both useful and concerning due to the limited amount of experience with such an expanding pathogenic threat and effectiveness of existing emergency plans. Surprisingly, most of the representatives did not perceive many, if any, direct responsibilities for their organizations and looked to others to address the emerging threat.

One of the largest disconnections was between the different fields of public health and law enforcement. Public health officials are masters of their field on many diverse fronts, but the execution of involuntary quarantines involving resistant persons was not one of the areas with a well-established track record. Similarly, law enforcement officials are expected to address numerous diverse public safety issues that evolve, but the enforcement of involuntary quarantines involving noncompliant persons was not on their radar. A few thoughtful exercise injects quickly identified this critical disconnection and the serious impact of it if a quarantine order were issued for multiple resistant persons with a serious infectious disease.

Disconnect – Expectations, Responsibilities & Execution 

During the exercise, the local law enforcement representatives were unexpectedly advised that they would be enforcing any local quarantine orders executed by local public health officials. This unanticipated assignment caused some fascinating conversations, and facial expressions, for this topic had not been discussed before the exercise or in the past. The law enforcement officials were unaware of this expectation and had not planned or trained for it. The public health officials, who rarely execute a quarantine order, expected that law enforcement officials were aware and prepared to enforce an order with little or no notice.

The exercise progressed past this discussion point with the topic not resolved, but the public health expectations were formally provided to the law enforcement officials. The public health officials also were advised of the issues that required their attention to plan and prepare for this joint responsibility. The valuable exercise demonstrated a great need for further collaboration and partnership for complex threats.

At a March 2015 homeland security conference attended by a diverse group of senior federal, state, local, tribal, and private sector leaders, this same topic was discussed with similar results. Interestingly, the same disconnection was identified and debated in search of a solution. The execution and enforcement of mandatory quarantines were so rare that the majority of participants had never contemplated the serious challenges of the issue.

With the current Ebola threat apparently diminishing, it remains to be seen what the results will be for future preparedness levels. The lessons learned from the Ebola virus, if implemented and retained, shall be beneficial for future pathogenic and biosecurity threats. However, if these lessons learned and vulnerabilities identified are not fully understood and truly addressed, organizations may be exposed to legal liability – along with political, financial, and social consequences.

Possible Legal Ramifications 

A nurse who contracted Ebola while working at a Dallas, Texas, hospital filed suit against her employer for not providing appropriate training and equipment for the disease. The merits of this tort claim will be argued both inside and outside the courtroom. This lawsuit should be a notice for public officials and leaders in all related fields to assess their intentions, planning, preparedness, and training for future public health and homeland security threats. There are consequences for ignoring these clearly identified threats and conditions under legal terms such as “failure to train” and “deliberate indifference.”

Research and analysis in 2010 indicated that court rulings involving failure to train and deliberate indifference could become relevant in future tort claims and actions regarding the failure to adequately prepare and train personnel for incidents or events that have already occurred or are likely to occur within jurisdictions. The recent, and probable future, shrinking of grants, funding, and budgets for preparedness and readiness shall not likely reduce an organization’s potential exposure, possibly assisting legal liability to join political and financial consequences as ramifications for actions or inactions.

The foundation of preparedness is established with the training of personnel to a basic and then advanced level or standard. Research has shown that, if appropriate or required training is not provided and subsequent injury occurs, the organization may be liable for the actions of its organization and employees through the legal concepts of failure to train and deliberate indifference. An analysis of the relevant case law identifies an area of interest regarding tort claims against organizations for their training, or preparedness, to execute their expressed or expected duties and responsibilities.

Beyond the accusation of failure to train, a finding of deliberate indifference may be more serious in that it can result in stronger consequences for an organization that has been provided notice of a training issue and chooses to ignore the need or requirement. “Deliberate indifference” is defined by U.S. Legal Forms Inc. as, “the conscious or reckless disregard of the consequences of one’s acts or omissions.” In the early court case of Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme Court found that deliberate indifference can result in an agency’s liability under 42 U.S.C. § 1983 (civil rights violation). The court ruled that it was only such indifference that can offend “evolving standards of decency” in violation of the Eighth Amendment. Numerous subsequent court cases have expanded this concept and concern for organizations and individuals.

Confusion Over Quarantine Enforcement 

Although there are several areas for enhancement and improvement for the next serious public health or biosecurity threat, the implementation of an involuntary quarantine remains one of the most significant ones. The arrival of Ebola in the United States in 2014 caused immense debate and confusion about quarantine and isolation laws and policies, especially with the early state quarantine guidance announced in New Jersey, New York, and Maine.

The temporary quarantine of a nurse in New Jersey after returning from West Africa ignited a firestorm of controversy regarding laws, policies, procedures, risks, and priorities. The later quarantine of the same nurse at her residence in Maine only expanded the confusion and controversy due to her actions and statements. Maine later reached a settlement with the nurse allowing her to travel freely in public.

Fortunately, with the very limited number of infected persons in the United States, due process and civil rights conversations shaped the discussion and political skirmish without a serious public health consequence. Unfortunately, this good fortune permitted many to ignore this critical subject and the nation’s vulnerabilities to execute a quarantine for a more serious and immediate public health or biological threat. This underlying issue has not gone away and cannot afford to be ignored due to its enormous difficultly.

Training Before the Next Threat Arrives Before the arrival or emergence of the next natural or human-caused biological threat, it may be advantageous to conduct a tabletop exercise utilizing a scenario similar to the nurse arriving in New Jersey from West Africa. The quarantine actions in New Jersey and Maine transitioned and terminated long before the various partners in the public and private sectors could provide many crucial answers and determine possible solutions. Additionally, this exercise scenario involves both domestic and international concerns to challenge participants.

To begin the conversation and design an exercise with a law enforcement and public health focus, the following points would be beneficial to discuss and address before the next consideration of quarantine execution and enforcement:

  • Sufficiency of laws, authorities, regulations, and procedures
  • Federal vs. state and local execution
  • Leadership and command structure
  • Coordination with wide-ranging partner organizations
  • Establishment of clear and agreed upon policies and procedures
  • Use of force and rules of engagement guidance
  • Procurement and distribution of proper resources
    • Personal protective equipment
    • Medical countermeasures
    • Residential, medical, and detention facilities
  • Assessment of realistic personnel resources
    • Reduction due to ill, worried well, and family care
    • Surge capacity and cross-certification
    • Reduction due to collateral and military reserve/guard duties
  • Sufficient pre-event training and exercising
  • Messaging to partners, public, and politicians
  • Clear acknowledgment of capabilities and intentions

A tabletop exercise or working group based on the events in Texas, New Jersey, and Maine, with the points listed above, may be a good place to start the honest and valuable discussion. Whether it is Ebola, Middle East Respiratory Syndrome, severe acute respiratory syndrome, or any emerging influenza, the risk of life-threatening epidemics and pandemics continues globally – so should robust planning and tangible preparedness.

There are potentially serious legal, political, financial, and social ramifications for ignoring these known homeland security threats. This subject remains a serious challenge that can only be resolved through collaboration and partnership within the entire homeland security community, especially public health and law enforcement. Action is required before the next event. Relying on good fortune is not an acceptable preparedness strategy.

The opinions expressed herein are solely those of the author in his individual capacity, and do not necessarily represent the views of his agency, department or the United States government.

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Robert C. Hutchinson

Robert C. Hutchinson, along-time contributor to Domestic Preparedness, is a director at Black Swans Consulting LLC. Before joining the private sector, he was the chief of police for the Broward County Public School, Special Investigative Unit. He retired after over 28 years as a federal agent with the U.S. Department of Homeland Security and the U.S. Department of the Treasury. His positions included deputy director, assistant director, deputy special agent in charge, assistant special agent in charge, supervisory special agent, and special agent at offices in Florida, Washington DC (HQ), Maryland, and Texas.  He was the deputy director of his agency’s national emergency preparedness division and assistant director for its national firearms and tactical training division. His over 40 publications and many domestic and international presentations address the important need for cooperation, coordination, and collaboration between public health, emergency management, and law enforcement, especially in pandemic preparedness. He received his graduate degrees at the University of Delaware in public administration and Naval Postgraduate School in homeland security studies.

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