The courts, public health, and legal preparedness

The judicial branch's key roles, as guardian of civil liberties and protector of the rule of law, can be acutely relevant during public health emergencies when courts may need to issue orders authorizing actions to protect public health or restraining public health actions that are determined to unduly interfere with civil rights. Legal preparedness for public health emergencies, therefore, necessitates an understanding of the court system and how courts are involved in public health issues. In this article we briefly describe the court system and then focus on what public health practitioners need to know about the judicial system in a public health emergency, including the courts' roles and the consequent need to keep courts open during emergencies.     

Assisted suicide

The U.S. Supreme Court has agreed to hear cases from Washington State and New York regarding the rights of people with terminal illnesses to have their doctor assist them in hastening death. In both the Washington and New York cases, the plaintiffs included people with AIDS or their caregivers. Arguments in the two cases are scheduled in January and decisions are expected in May or June 1997. In both cases, appeals courts struck down State laws.     

EEOC: benefits application doesn't preclude ADA complaint. Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission (EEOC) issued new enforcement guidelines that give employees, including those with AIDS, greater opportunities to press employment discrimination claims in court. An individual may simultaneously be eligible for disability benefits and for legal rights under the Americans with Disabilities Act (ADA). The guidance was developed and issued following a series of court decisions that blocked plaintiffs in ADA cases from proceeding with litigation because they had received disability benefits. ADA standards differ fundamentally from those of disability programs, such as social security, worker's compensation, and disability insurance.     

Congress, courts rethinking role in preventing disability discrimination

Congress and the judiciary may challenge the law that protects people with AIDS from discrimination in employment and public accommodations. House Speaker Newt Gingrich has proposed turning the enforcement of the Americans with Disabilities Act (ADA) to local communities. At the same time, a panel of Federal judges has recommended limiting access to Federal courts for certain litigants, including those filing employment discrimination claims under the ADA. Attorney Leonard S. Rubenstein of the Bazelon Center for Mental Health Law, testified that it is a misconception that civil rights cases are responsible for the growth of the caseload in Federal courts. He feels that Federal judges are more experienced and consistent in their decisions and are free from community pressures such as re-election. A spokesman for the Judicial Conference suggested that the Equal Employment Opportunity Commission (EEOC), for example, should be improved to process more discrimination cases. Rubenstein says that placing greater burden on the EEOC is unrealistic.     

Federal appeals court tilt in favor of ADA defendants

Results of a study conducted by LRP Publications indicate that plaintiffs who file discrimination lawsuits under the Americans with Disabilities Act (ADA) have only a 20 percent chance of winning their case if the case reaches Federal appeals courts. Editors from LRP examined 261 Federal decisions, including employment and non-employment claims, between 1994 and 1997. Some courts are more likely than others to hear ADA claims and both the 3rd Circuit court, based in Philadelphia, and the District of Columbia Circuit court ruled in favor of plaintiffs at least half the time. The 10th Circuit court, based in Denver, has a greater percentage of ADA cases decided against the plaintiff than any other circuit court. A pro-employer trend in ADA litigation was also noted in the LRP study.     

Supreme Court to define 'employee' in small businesses

The U.S. Supreme Court will hear oral argument on November 6, 1966 in a dispute over who is considered an employer under Federal civil rights statutes. The decision could determine whether workers can sue for HIV-related discrimination in the workplace. The current dispute over how to count total employees figures in at least three AIDS-related Americans with Disabilities Act (ADA) workplace discrimination cases. The increased use of part-time and temporary employees has made it difficult to determine whether a threshold has been met. Two methods of counting employees, the Equal Employment Opportunity Commissions payroll method as well as an alternative method, are being debated. The Seventh Circuit court rejected the payroll method that counts all employees, salaried, hourly, full-time, part-time, and on paid or unpaid leave. The courts have previously had to define an employer in HIV-related discrimination cases in the workplace. In both cases, courts had to determine whether a single entity could be combined with a related entity to reach the threshold for coverage under the ADA. At the time the lawsuits were filed the threshold was 25 employees; it has since been reduced to 15.     

Presenting evidence for the court

The medical doctor is sometimes called upon to serve in the courts as expert witness. The work is challenging and has serious implications for the legal and justice system. The outcome of a case may adversely affect the lives of real people when the evidence is not presented appropriately. However, there is reluctance from doctors to participate in the court process. The health professional may not be trained in the art of being a court witness and while scientifically qualified, may not provide the due diligence in explaining the issues properly to the members of the court. Some of the issues that may affect the outcome of a legal case include late discovery of conflicts of interest, inability to communicate well and stick to scientific facts, the inefficiencies of the legal system, and testifying against a medical colleague. There is merit to recommend that all medical doctors must undergo theoretical and practical training when presented as expert witness in courts. Five cases are presented here as illustrations of doctors involved in court cases.     

Implementing the Essential Elements of a Mental Health Court: The Experiences of a Large Multijurisdictional Suburban County

Mental health courts developed in the USA in the late 1990s as one means to reduce the involvement of people with mental illness in the criminal justice system. In response to the growth in number of mental health courts, the Council of State Governments led an initiative to identify essential elements of mental health courts to guide their development and implementation. This paper applies these essential elements to a municipal mental health court in a multijurisdictional, suburban county. While this court met most essential elements, they faced a number of challenges. The primary ones included not being able to advance from hearing municipal cases only to state misdemeanor and felonies, not having the resources to expand program capacity for municipal cases, and participants not being able to always access needed mental health treatment, rehabilitation, and support services. The paper concludes with implications for behavioral health administrators and direct service staff in implementing the essential elements of mental health courts.     

EEOC is making quick work of AIDS job-bias litigation. Equal Employment Opportunity Commission

The Equal Employment Opportunity Commission (EEOC) has been successful in resolving discrimination cases that involve HIV/AIDS. Half of the cases the EEOC has taken to court under the Americans with Disabilities Act (ADA) have been settled out of court. Over 900 claims of disability-based employment discrimination related to HIV/AIDS have been brought to the EEOC since the ADA took effect in 1992. AIDS is the largest single category of disability that has been sent to court directly by the EEOC. By filing suit, the EEOC reminds employers that they cannot fire a worker with a disability or cap an employee's medical benefits to improve corporate profit margin.     

7th Circuit will not reconsider its ruling on AIDS caps

The 7th U.S. Circuit Court of Appeals declined to re-examine a ruling that allows insurers to cap AIDS-related medical benefits without violating the Americans with Disabilities Act (ADA). The ruling came in a case in which two plaintiffs brought action against Mutual of Omaha for applying lifetime caps on AIDS related claims. Mutual admitted it had no actuarial data to support the caps. The court held that insurance policies are not covered by the ADA, since companies can restrict the type of benefit they make available. The plaintiffs are considering an appeal to the U.S. Supreme Court. Other courts which have upheld benefit distinctions are listed.     

Legal challenges to managed care cost containment programs: an initial assessment.

The success of managed care cost containment innovations depends on many factors, including how courts decide litigation challenging various cost containment initiatives. Although such litigation is just emerging, enough cases have been reported to enable an initial assessment of court rulings. To date there is no evidence that courts have systematically impeded cost containment initiatives. Few courts seem willing to usurp legislative choices in formulating health policy or to obstruct the market in organizing and delivering health care services. The anticipated role of the courts as policymakers in shaping health care delivery has yet to emerge.     

Calif. court modifies adoption policy for orphans with AIDS

The California Court of Appeals has ruled that an orphaned child with AIDS cannot be presumed to be adoptable unless there are potential parents willing to take the child. The ruling grew out of a case where two girls, one of whom has AIDS, were orphaned when their parents died of AIDS-related causes. The children were living with an aunt, whose parental rights were severed after alleged abuse against one of her own children. A foster couple wanted to adopt the girl who did not have AIDS. Because court officials did not want to split the sibling pair, they will be returned to the care of relatives until adoptive parents willing to take both children are found.     

Liability for wrongful terminations: are hospitals at risk?

This article examines the extent to which the three principal exceptions to the common-law doctrine of employment-at-will--namely the public policy, implied contract, and good faith and fair dealing exceptions--have been recognized in hospital termination cases. State supreme court and appellate court cases are analyzed to illustrate the type of conduct that precipitated wrongful termination claims against hospitals during the 1980s, how the courts disposed of these claims, and the rationale underlying their decisions. Suggestions, based on these and related cases, for avoiding or at least minimizing liability for wrongfully terminating hospital employees, are presented.     

REGULATING THE CONSTRUCTION OF HOSPITALS OR VICE VERSA: THE COURTS AND PRIVATE HOSPITAL PLANNING IN VICTORIA

This paper examines the legal framework for regulating the development of new private hospitals in Victoria. It first reviews the genesis of the statutory power for private hospital regulation and outlines the two court cases which clarified the interpretation of the statute. The legislation and its interpretation by the courts emphasise a particular approach to private hospital planning which does not necessarily address the problems faced by consumers of hospital services in Victoria. It is argued that the law has constructed a particular framework for private hospital regulation which does not address the critical problems facing the hospital system in the 1990s. The legal framework for regulation is based on property rights rather than the needs of hospital users, despite the language used in the legislation.     

Two courts rule against inmates who sought counseling

Individuals who are diagnosed with HIV infection often seek counseling to deal with the disease and its complications. Prisoners who receive counseling after a diagnosis of HIV have little recourse if they believe the counseling is insufficient. Two recent court cases resulted in rulings against HIV-infected inmates claiming inadequate counseling. In Harris v. Shuman, the 7th U.S. Circuit Court of Appeals found that adequacy of psychological counseling for an inmate could not be challenged under the Americans with Disabilities Act. In Hetzel v. Swartz, a Federal judge in Pennsylvania found that the constitutional rights of an inmate were not violated when he was denied treatment for depression following his diagnosis of AIDS.     

Legal briefs in dental bias case raise issues pivotal to epidemic

The U.S. Supreme Court will hear oral arguments in March that could profoundly alter the way courts, employers, and the medical community deal with HIV. Bragdon v. Abbott raises the issues of whom the law covers, whether health care providers have a choice in treating HIV and AIDS patients or refusing to treat them, and whether the stigma of HIV impedes an infected person's ability to participate in mainstream American life. This is the first time that the Supreme Court will interpret the Americans with Disabilities Act (ADA) and how the case is decided could affect the legal rights of people with other impairments. The case grew out of a dentist's refusal to treat an HIV-positive patient in his office because of the increased risk of contracting the disease. Randon Bragdon offered to treat Sidney Abbott in a hospital, where infection control procedures are better. Abbott sued, relying on the ADA, and prevailed in both Federal district court and the 1st U.S. Circuit Court of Appeals. The Supreme Court asked both sides to discuss the following questions: does the ADA protect all people with HIV, including those with no symptoms, from discrimination; is reproduction a major life activity under the ADA; and should the court defer to the health-care provider's professional judgement for evaluating whether a patient poses a direct threat. Bragdon argues that an asymptomatic person cannot be disabled under the meaning of the law and cites two celebrities as examples, Earvin "Magic" Johnson and Greg Louganis. Abbott argues that the definition of disability under the ADA is intentionally broad to achieve the remedial purpose of enabling Americans with disabilities to live full, independent and economically sufficient lives. The elements of the case, the key players, and the legislative history are reviewed.     

Legislation seeks to exclude inmates from ADA coverage

U.S. Senator Strom Thurmond has revived legislation aimed at excluding inmates and pretrial detainees from protections under the Americans with Disabilities Act (ADA). S. 33 seeks to reverse a U.S. Supreme Court ruling that says inmates are covered under the act. The Senator introduced a similar bill in 1998, but it died when Congress adjourned. Thurmond was concerned that prisoners with AIDS and other disabilities would demand special privileges and tie up the courts with lawsuits related to their rights under ADA.     

Drug treatment courts are popular but do they work and are they ethical and appropriate for Canada?

Currently Canada is experimenting with the implementation of drug treatment courts. Pilot projects are underway in both Toronto and Vancouver. In the U.S., drug courts emerged as a response to the overcrowding of the prison system, the end product of the revolving door of substance dependent people moving through the court system. However, this expansion was not accompanied by any rigorous evaluation or critical reflection as to whether drug treatment courts can achieve their desired outcomes or if they are appropriate for dealing with substance dependent offenders. The purpose of this article is to take a critical look at this phenomenon and to discuss whether the drug court model is suitable for Canada.     

Union pact's seniority rule trumps ADA on job transfers

Nine of the 12 Federal circuit courts have ruled that collective bargaining agreements take precedence over the Americans with Disabilities Act and the Rehabilitation Act. These rulings mean that union workers with HIV or AIDS may not be able to obtain job accommodations or reassignments that would make their continued employment possible. The 12 cases are cited, and highlights of three cases are described.     

State is not liable for printing names of two people with HIV

In a decision that upheld a lower court ruling, the 2nd U.S. Circuit Court of Appeals found the New York Department of Education not liable for violating the privacy rights of two individuals identified as HIV-positive. John Doe and Jane Roe gave presentations to educators and social workers as part of an HIV education and prevention campaign. A Department of Education guide thanked program participants and used Roe and Doe's full names. Doe and Roe sued, alleging that the Department had never sought written permission to identify them as HIV-positive. The courts found that the Department had not knowingly violated Roe's and Doe's rights and that their public activism in the HIV education arena meant they had waived their rights to privacy concerning their HIV status.