Those hoping that 2011 would be a more settled year, following the tumultuous few years following the global financial crisis and the near collapse of Western markets, will have been severely disappointed. Only a few months into the year, and there remains continuing uncertainty in Western money markets, civil unrest in Europe, as well as revolution sweeping across the Middle East. Similarly, the rest of the world has been able to do little more than look on, helpless bystanders as Japan has endured its most powerful earthquake on record, followed then by a tsunami, and now possible meltdown at the stricken Fukushima nuclear power plant.
In such unstable times, one may start to wonder what would happen in such worst case scenarios. What procedures are in place, if any, when catastrophe strikes? Moreover, who decides which procedures should be taken?
Some light has been shed on such unknowns by William Glaberson in a recent article for The New York Times. In February 2011 a seemingly innocuous official legal document, was published in New York by the State Court System and the State Bar Association, with the rather prosaic title, the ‘New York State Public Health Legal Manual’. Yet, as Glaberson’s article highlights, the banal title belies the radical material written within. This legal manual has been designed as a guide for legal and health professionals in the event of a large-scale emergency, such as a terrorist attack, epidemic or mass contamination.
The intention behind the creation of such a document, as the chief of operations for the state court system, Ronald P. Younkins, has explained, is to give judges and lawyers a place to turn to in an emergency, because currently there exists a ‘maze of state and federal laws – some decades or centuries old – [which] can be difficult to decipher’.
Large scale disasters, in all their forms, put overwhelming demands on the need for basics such as medical supplies, food, water, fuel, and so on and so forth. Yet, as the legal manual highlights: “…there are no statutes or rules directly addressing which vulnerable persons should get priority to limited health resources…”. Major disasters, be they terrorist attack, mass epidemic or natural disaster, stress-test many established legal codes, as well as challenging issues of moral responsibility and accountability. For example, if demand outstrips supply for medical goods, how do we decide who should receive it – the weakest, the youngest or perhaps instead the ones most likely to survive?
Moreover, individual liberty, which many would argue to be a cornerstone of American democratic thought, takes somewhat of a battering in the New York based report. Laws originally intended to protect such rights are, under the present document, capable of being suspended. A potentially infectious people, for instance, can be isolated against their will or “subjected to mandatory treatment”. Such a scenario is reminiscent of the case of ‘Typhoid Mary’, a woman who due to her ‘healthy carrier’ status of Typhoid Fever, was isolated against her will by the courts, on an East River island in the US from 1915 until her death in 1938.
In a similar vein, the current New York legal manual outlines that: “local health officers may take any reasonable actions where health conditions require that immediate action be taken”. Furthermore, “in the event of an attack”, the state civil defense commission may (amongst other things), “take, use or destroy any and all real or personal property, or any interest therein, necessary or proper for the purposes of civil defense” and “shall control all pedestrian and vehicular traffic, transportation and communication facilities and public utilities.” Similarly, the document notes that the government has broad power to declare a state of emergency, which would then allow local authorities to “[…] establish curfews, quarantine wide areas, close businesses, restrict public assemblies and, under certain circumstances, suspend local ordinances”.
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