Menu of Suggested Provisions For State Tuberculosis Prevention and Control Laws

E. Emergency Detention

Descriptive Note: Emergency detention laws provide public health officials with legal authority to swiftly take public health action to detain a person with TB who is reasonably believed to be a threat to the public’s health. A hearing is not required prior to issuance of the health officer order or court order, but is generally required within a reasonable amount of time after the initial detention either if the individual requests release or if automatically granted by state law. All of the provisions in this section are reported to be effective in the jurisdictions in which they have been enacted or promulgated. There is variation among the selected provisions as to who is granted authority to implement or request assistance for emergency detention and whether the detention order is by health officer order or court order. The third bullet is a Florida statutory provision and the original wording of the law applies only to physicians. “Physician” was changed to “healthcare worker” below at the recommendation of Florida legal counsel to broaden the scope of the law, and the legal citation was retained. The final bullet pertains to MDR or XDR TB specifically.

• The local health officer may detain in a hospital or other appropriate place for examination or treatment, a person who is the subject of an order of detention issued pursuant to [statutory provision authorizing an order for the removal to, detention in, or admission into, a health facility or other treatment facility for examination or purpose of detention] without a prior court order except that when a person detained pursuant to [statutory provision authorizing an order for the removal to, detention in, or admission into, a health facility or other treatment facility for examination or purpose of detention] has requested release, the local health officer shall make an application for a court order authorizing the continued detention within 72 hours after the request or, if the 72-hour period ends on a Saturday, Sunday, or legal holiday, by the end of the first business day following the Saturday, Sunday, or legal holiday, which application shall include a request for an expedited hearing. After the request for release, detention shall not continue for more than five business days in the absence of a court order authorizing detention. However, in no event shall any person be detained for more than 60 days without a court order authorizing the detention. The local health officer shall seek further court review of the detention within 90 days following the initial court order authorizing detention and thereafter within 90 days of each subsequent court review. In any court proceeding to enforce a local health officer’s order for the removal or detention of a person, the local health officer shall prove the particularized circumstances constituting the necessity for the detention by clear and convincing evidence. Any person who is subject to a detention order shall have the right to be represented by counsel and upon the request of the person, counsel shall be provided. Cal. [Health & Safety] Code § 121366 (Deering 2009).

• Emergency Hold
  • 1) The department may file a petition before a circuit court requesting that an emergency hold order be issued for a person if the department has evidence that:
    • The person has or is reasonably suspected of having active tuberculosis;
    • The person poses a threat to the public health;
    • The person who has active tuberculosis is not likely to appear at a hearing scheduled under [statutory provisions relating to a petition for court-ordered examination or treatment; or hospitalization, placement, or residential isolation];
    • The person provides evidence by words or action of being likely to leave the jurisdiction of the court prior to the hearing date; or
    • The person is likely to continue to expose the public to the risk of active tuberculosis until the hearing date.
  • 2) An emergency hold order may not be issued unless the court finds that:
    • The department has requested a hearing under [statutory provisions relating to a petition for court-ordered examination or treatment; or hospitalization, placement, or residential isolation] to consider the examination, treatment to cure, or placement of the person who has or who is reasonably suspected of having active tuberculosis;
    • The department presents competent evidence that a threat to the public health exists unless the emergency hold order is issued;
    • The department has no other reasonable alternative means of reducing the threat to the public health; and
    • The department is likely to prevail on the merits in a hearing under [statutory provisions relating to a petition for court-ordered examination or treatment; or hospitalization, placement, or residential isolation].
  • 3) When issuing an order for an emergency hold, the court shall direct the sheriff to immediately confine the person who has active tuberculosis. The sheriff shall confine and isolate the person in such a manner as required by the court. The sheriff and the circuit court shall consult with the department concerning any necessary infection control procedures to be taken.
  • 4) In order to reduce the time before a full hearing may be held, the person confined under an emergency hold order, or the person’s counsel, may waive the notice periods for hearings required under [statutory provisions relating to a petition for court-ordered examination or treatment; or hospitalization, placement, or residential isolation]. An emergency hold order may not continue for more than 5 days or the time period necessary for conducting hearings under [statutory provisions relating to a petition for court-ordered examination or treatment; or hospitalization, placement, or residential isolation], whichever time period is shorter. Fla. Stat. Ann. § 392.57 (LexisNexis 2009).
• When a person who has active tuberculosis or who is reasonably suspected of having active tuberculosis presents to a [healthcare worker] for examination or treatment and the [healthcare worker] has reason to believe that if the person leaves the treatment location the person will pose a threat to the public health based on test results or the patient’s medical history and the [healthcare worker] has reason to believe that the person is not likely to appear at a hearing scheduled under [statutory provisions relating to a petition for court-ordered examination or treatment; or hospitalization, placement, or residential isolation], the [healthcare worker] shall request the State Health Officer or his or her designee to order that the person be involuntarily held by executing a certificate stating that the person appears to meet the criteria for involuntary examination or treatment and stating the observation upon which that conclusion is based. The sheriff of the county in which the certificate was issued shall take such person into custody and shall deliver the person to the nearest available licensed hospital, or to another location where isolation is available, as appropriate, for observation, examination, and treatment for a period not to exceed 72 hours, pending a hearing scheduled under [statutory provisions relating to a petition for court-ordered examination or treatment; or hospitalization, placement, or residential isolation]. The certificate must be filed with the circuit court in which the person is involuntarily held and constitutes a petition for a hearing under [statutory provisions relating to a petition for court-ordered examination or treatment; or hospitalization, placement, or residential isolation]. Fla. Stat. Ann. § 392.565 (LexisNexis 2009).
• If a physician, the department, or a local health officer reasonably believes that a person has tuberculosis and that the person is likely to attempt to leave the jurisdiction to avoid a hearing on commitment, the physician, department, or local health officer shall notify the sheriff of the county in which the person is found, who shall cause the person to be detained in a hospital. At least by the next regular business day, the physician, department, or local health officer shall petition for an order from the district court of the county in which the person is found for continued detention of the person and to require examination or treatment for tuberculosis pursuant to [statutory provision authorizing application to court for examination or treatment order]. The sheriff must serve the summons required by [state law] on the person the same day the petition is filed.
  • Immediately after the petition is filed the court will decide whether further emergency detention is required and may order continued hospital detention of the person for no more than 7 days if it finds that the person is an unacceptable danger to the public health and safety in that the person probably has tuberculosis and unless detained will probably leave the jurisdiction to avoid a hearing pursuant to this part.
  • The district court of the county in which the person is found has jurisdiction over the person for the purposes of this section. The district court may, in the interests of justice, order that jurisdiction over further proceedings be transferred to the district court of the county of the person’s residence. Mont. Code. Ann. § 50-17-115 (2009).
• If the patient has suspected or confirmed infectious or potentially infectious TB disease, is suspected or confirmed to have either MDR TB or XDR TB, and is non-adherent or threatens non-adherence with infection control measures, regardless of his or her risk for flight, the health officer shall immediately serve the patient an order of temporary commitment pursuant to this section, rather than an order for isolation due to the severity of the consequences of transmission. N.J. Admin. Code § 8:57-5.12 (2009).