Pre-Communicability: A New Threat to Your Civil Rights

Today it was announced that an Atlanta man was recently arrested, detained and flown to Atlanta because he refused to follow doctors orders and insisted on flying with a drug-resistant form of TB.  

However, the head of the CDC, Julie Gerberding, confirmed after testing that the man had "relatively little TB in his phlegm."

The sub-title of the WaPo report on this interesting story reads: "He ignored orders, Traveled Extensively."

Will we be hearing and/or reading about other Americans who are arrested for "Traveling Extensively" as we approach the 2008 elections?

In my opinion, at no time since World War I have our civil liberties been weaker.  It is time to do something about it.  Will we put our candidates up and down the ballot to the test?

Follow me on the flip to learn more.

As a prelude to consideration of the recent changes to the laws affecting all of our civil liberties, let 's consider the facts of this very recent case.

First, the title:

Man With Rare TB Detained, Isolated
He Ignored Orders, Traveled Extensively
By David Brown
Washington Post Staff Writer
Wednesday, May 30, 2007; A03

David Brown is a reputable Washington Post staffer who has reported extensively on public health issues.  He is careful to give us all the facts in this story.

For instance, the Federal Government has not forcibly detained anyone for over 40 years to treat a patient with an infection:

The federal government last week detained and quarantined an Atlanta man who had spent nearly two weeks traveling in the United States, Canada and Europe with "extensively drug-resistant" tuberculosis, a rare and often fatal form of the infection, officials said yesterday.

The Centers for Disease Control and Prevention imposed an "order of isolation" on Friday after catching up with the man, who had flown into Montreal the day before and then driven to New York City. He was flown in a government plane on Memorial Day to Atlanta, where he is now undergoing treatment.

Although states occasionally use their authority to forcibly detain and treat patients with infections, this was the first time since 1963 the federal government has done so. The last case involved suspected importation of smallpox, a disease eradicated in the 1970s.

Let us consider the facts of this situation as Brown reports them:

...officials said the man had recently been diagnosed with TB and knew he should not travel when he left the United States on May 12.

After testing revealed his tuberculosis was extensively drug-resistant, he was contacted in Europe by health authorities and told not to take a commercial flight home -- advice he ignored.

Martin Cetron, a physician who directs the CDC's division of global migration and quarantine, said he spoke to the man by phone Friday and told him to go to a New York hospital. The man went willingly.

While the man had broken the "covenant of trust" that is usually sufficient to keep infectious TB patients from willfully exposing others, "from our perspective no laws were broken here," Gerberding said.

No laws were broken, eh?  So what is the authority on which this man was detained?

And, what is the risk we are dealing with here?

TB cases that are resistant to the two first-line classes of drugs and to at least two second-line classes have been detected in 37 countries and are increasing worldwide.

It is especially a problem in places such as South Africa and the former Soviet Union where TB treatment is inadequate, or prevalence of HIV infection is high. An outbreak killed 52 of 53 people it infected in a rural hospital in South Africa in 2005 and 2006, according to reports last summer. XDR-TB, as it is known, is rare in the United States, with only 49 cases detected since 1993, of which at least 12 were fatal, according to a CDC report in March.

...Brief or long-distance exposure to people with infectious TB rarely results in transmission of the microbe.

Mmm...so we forcibly detained a man, using a process that hasn't been used in 40 years to prevent a disease that is, by all accounts, extremely difficult to contract (only 49 cases in 14 years).

Brown also tells us that:

Earlier this month, public health officials in Arizona obtained a court order allowing them to confine and treat a 27-year-old dual Russian-U.S. citizen who had undergone months of TB treatment in Russia, where he had often been homeless. He is undergoing treatment for XDR-TB in a Phoenix hospital.

Mmm...who's that Senator from Arizona?

And what's the official story:

Officials at the CDC and the Public Health Agency of Canada sketched this account of the case yesterday: The man was diagnosed with tuberculosis when he had an abnormal chest X-ray, which was done for another reason. A laboratory culture revealed TB bacteria in his phlegm. But he had no symptoms from the illness, and in particular no fever or cough.

And, at the end of the story, Brown provides an interesting little tidbit about the real risk that this man poses to the population:

Gerberding said the man had relatively little TB bacteria in his phlegm, a finding that makes it less likely -- although far from impossible -- that he would transmit the infection to someone else.

And so, after that little interesting story, let's us look at the laws that have been passed over the last five years that bear on this situation.

Detention for "pre-communicability"

In June 2002, the House and Senate passed the Public Health Security and Bioterrorism Preparedness and Response Act of 2002, which in relevant part reads as follows:

SEC. 142. STREAMLINING AND CLARIFYING COMMUNICABLE DISEASE QUARANTINE PROVISIONS.

• (a) ELIMINATION OF PREREQUISITE FOR NATIONAL ADVISORY HEALTH COUNCIL RECOMMENDATION BEFORE ISSUING QUARANTINE RULES-

• (1) EXECUTIVE ORDERS SPECIFYING DISEASES SUBJECT TO INDIVIDUAL DETENTIONS- Section 361(b) of the Public Health Act (42 U.S.C. 264(b)) is amended by striking `Executive orders of the President upon the recommendation of the National Advisory Health Council and the Surgeon General' and inserting `Executive orders of the President upon the recommendation of the Secretary, in consultation with the Surgeon General,'.

• (2) REGULATIONS PROVIDING FOR APPREHENSION OF INDIVIDUALS- Section 361(d) of the Public Health Act (42 U.S.C. 264(d)) is amended by striking `On recommendation of the National Advisory Health Council, regulations' and inserting `Regulations'.

• (3) REGULATIONS PROVIDING FOR APPREHENSION OF INDIVIDUALS IN WARTIME- Section 363 of the Public Health Act (42 U.S.C. 266) is amended by striking `the Surgeon General, on recommendation of the National Advisory Health Council,' and inserting `the Secretary, in consultation with the Surgeon General,'.

• (b) APPREHENSION AUTHORITY TO APPLY IN CASES OF EXPOSURE TO DISEASE-

• (1) REGULATIONS PROVIDING FOR APPREHENSION OF INDIVIDUALS- Section 361(d) of the Public Health Act (42 U.S.C. 264(d)), as amended by subsection (a)(2), is further amended--

• (A) by striking `(1)' and `(2)' and inserting `(A)' and `(B)', respectively;

• (B) by striking `(d)' and inserting `(d)(1)';

• (C) in paragraph (1) (as designated by subparagraph (B) of this paragraph), in the first sentence, by striking `in a communicable stage' each place such term appears and inserting `in a qualifying stage'; and

• (D) by adding at the end the following paragraph:

• `(2) For purposes of this subsection, the term `qualifying stage', with respect to a communicable disease, means that such disease--

• `(A) is in a communicable stage; or

• `(B) is in a precommunicable stage, if the disease would be likely to cause a public health emergency if transmitted to other individuals.'.

• (2) REGULATIONS PROVIDING FOR APPREHENSION OF INDIVIDUALS IN WARTIME- Section 363 of the Public Health Act (42 U.S.C. 266), as amended by subsection (a)(3), is further amended by striking `in a communicable stage'.

This language operates to consolidate and expand the President's power to authorize quarantines and apprehensions.  It removes power from the medical professionals at the National Advisory Health Council and places it entirely in the hands of a political appointee:  the Secretary of the HHS.  It also expands the power to apprehend (i.e. arrest) and detain people who are in a stage of "pre-communicability."

I believe a good case can be made that this recent TB arrest and detention is the first step in a campaign to begin testing the use and implementation of this authority.

I wanted to get this diary up quickly and will post updates as I continue to work on it.  I appreciate all your comments about it and how to improve it.