(d)(5) hold on a minute!
In this week's New England Journal of Medicine, Wendy Parmet provides legal justification for my inchoate worries. (More about the author.)
Many important questions remain [regarding quarantine and detention for tuberculosis control]. First, courts have not decided how long someone may be held before a hearing is offered or what procedures are necessary in the event of a mass quarantine. Courts have also not yet decided what probability of risk justifies short-term or long-term detention. Nor have they clarified what evidence is needed to determine that a person is or may be infectious or how infectious a person must be to justify isolation. Most critical, courts have not explained what must be shown to conclude that a patient is noncompliant so that detention is the least restrictive alternative. In tuberculosis cases, courts have upheld detention when a patient has failed, like [Andrew] Speaker, to follow medical advice. But they have not considered how forcefully that advice must be given or what, if anything, the government has to do to facilitate compliance. [. . .]

Compulsory isolation and quarantine alone cannot stop the spread of XDR tuberculosis. Moreover, excessive reliance on compulsory measures can lull the public into a false sense of security and at the same time prompt people who are at risk to do exactly what Speaker did — run. Fortunately, most persons infected with tuberculosis want treatment and have no desire to infect others. When clinicians and health officials work with patients and have their trust, most will cooperate. By ensuring that coercion is used only when less restrictive alternatives will not work and with due regard for the rights of those detained, the law can foster public trust, minimizing the need for compulsion and laying the groundwork for the comprehensive and costly control programs needed to prevent the spread of XDR tuberculosis and other contagious pathogens.

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