Resistant Tuberculosis and the Return of Quarantine: Justifications and Accompanying Risks

By SHERRY F. COLB

Monday, Jun. 25, 2007

Last month, as widely reported, Andrew Speaker received a diagnosis of resistant tuberculosis (TB), known as XDR-TB (for "extensively drug-resistant TB"). TB is a deadly infectious disease, caused by bacteria, which most commonly attacks a person's lungs. Speaker apparently traveled on commercial jet planes even after learning of his diagnosis. Accounts differ, however, regarding exactly what was communicated to him about contagiousness. He is now being held in quarantine, the first imposed by the United States since 1963.

Meanwhile, another resistant-TB patient, Robert Daniels, is living, under court order, as a "public menace" in the jail unit of an Arizona hospital. Speaker and Daniels are not the only ones.

Cases like these raise a question that the U.S. has not had to confront in a long time: Is it wise to confine people in quarantine when they contract a contagious, deadly illness?

Prior to the advent of safe antibiotics in the middle of the Twentieth Century, an outbreak of an infectious disease like TB would lead to mass confinement in a sanitarium, where patients would recover, remain sick, or die in isolation. Though such confinement is not literally "imprisonment," it is functionally quite similar. And many of us would view as culpable those who attempt to evade isolation orders or recommendations in the first place. The public reaction to Andrew Speaker's travels provides a case in point.

Why Treat Speaker Like a Criminal?

It is easy to understand the urge to treat as dangerous criminals the sick people who walk among us, exposing everyone to their infections. A contagious person is like a walking, time-release bomb, and detonating a bomb in public is a grave offense. If a person were deliberately to spread infection in this way, he would be engaged in a form of biological warfare or terrorism. If instead, the person spreads infection knowingly (that is, knowing he is contagious) but not deliberately (not with the goal of infecting others), the conduct would still seem to qualify as a reprehensible criminal act.

Spreading disease in this way appears particularly blameworthy in the case of a drug-resistant infection, because an epidemic could not be contained in the ordinary way - through the use of antibiotics. In addition, some people who carry resistant disease might themselves have essentially "bred" the strains of illness within their own bodies, by ignoring doctors' instructions and taking antibiotics only sporadically. Such behavior leads to the proliferation and survival of the "fittest" bacteria - those resistant to antibiotics.

Consider the more innocuous example of a man or woman sitting near you on an airplane or at a show, coughing up phlegm and blowing his or her nose. In noticing this spectacle, you doubtless grow worried that the inconsiderate person who decided to fly or go to the theater, instead of staying home (and away from you), could infect you with the cold or flu and inflict great misery as a result.

When the contagious illness is a drug-resistant strain of TB, the anger and desire to protect ourselves are understandably greater. The need to shield the public from the threat of disease falls within the so-called "police power," which enables government to act in the face of a health or safety emergency. A quarantine is a traditional and recognized exercise of this power.

The Law of Unintended Consequences: Why Resort to Quarantine Could Actually Endanger Public Health

Even if one believes that people carrying contagious diseases pose a criminal threat that the government should address, the decision to quarantine may not be the wisest route to safety. In attempts to contain a disease, it is crucial to consider the incentives that a quarantine approach puts in place.

When a person (with access to health care) feels sick, he ordinarily views a medical consultation as a potential avenue to wellness. If, however, the patient knows that physicians are prepared to have their patients locked up in quarantine after diagnosis, he might reconsider a visit to the doctor.

Under the law of unintended consequences, criminalization of a social problem places a premium on the target's ability to evade law enforcement. The resulting challenges can sometimes dwarf those associated with the social problem itself.

During the Prohibition Era, for example, the demands of people who desperately wanted to drink alcohol gave rise to eager suppliers equipped with assassins, money-laundering operations, systems of organized bribery and extortion, and other tactics to protect illicit business from the government.

One could make similar observations about the arrest and prosecution of pregnant drug-users in modern times. If a pregnant woman abuses substances and wants to stop, then treating her as a criminal will likely frustrate the connection that she might otherwise seek to forge with medical personnel. Such a connection, in turn, could be highly beneficial to the health of the developing baby.

Recognition of such consequences might help explain the unusual unity of pro-life and pro-choice groups in expressing outrage at a policy carried out in South Carolina. Under the policy, hospitals drug-tested pregnant women and turned over positive results to the police. The Supreme Court eventually held the policy unconstitutional (in the absence of patient consent) in Ferguson v. City of Charleston.

Why Quarantine Is Especially Risky for Resistant TB

For a patient carrying resistant TB, the harm resulting from effectively criminalizing his status could be especially great. That is because a person experiencing symptoms of TB will not know, prior to seeing a doctor, whether his sickness is responsive to antibiotics.

Assume that a given person's infection is treatable. If he chooses not to see a doctor, for fear of being quarantined, then he will continue walking around, suffering needlessly and spreading infection wherever he goes. Others could make similar decisions regarding treatment, thereby generating an epidemic that never had to be. Alternatively, the patient - or one of the people whom he has exposed to TB - might get his hands on antibiotics from a non-medical source. In the absence of supervision, the patient might stop taking the medicine as soon as his symptoms subside. This is a recipe for breeding resistant strains.

In the absence of a quarantine policy, TB patients may be more likely to have their infections diagnosed and treated properly. Such diagnosis and treatment represent the best way to avoid the disease's mutation into resistant strains as well as its spread. That is perhaps why many doctors working in disease control are reluctant to order a person confined to a hospital (or jail cell), except as a very last resort. When society makes access to medical care extremely costly - whether in terms of money or liberty - it runs the risk of ultimately paying the greatest price itself.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her book, When Sex Counts: Making Babies and Making Law, is currently available on Amazon.

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