Given limited supplies of vaccines, antiviral drugs, and ventilators, non-pharmaceutical interventions are likely to dominate the public health response to any pandemic, at least in the near term. The six papers that make up this chapter describe scientific approaches to maximizing the benefits of quarantine and other nonpharmaceutical strategies for containing infectious disease as well as the legal and ethical considerations that should be taken into account when adopting such strategies. The authors of the first three papers raise a variety of legal and ethical concerns associated with behavioral approaches to disease containment and mitigation that must be addressed in the course of pandemic planning, and the last three papers describe the use of computer modeling for crafting disease containment strategies.
More specifically, the chapter’s first paper, by Lawrence Gostin and Benjamin Berkman of Georgetown University Law Center, presents an overview of the legal and ethical challenges that must be addressed in preparing for pandemic influenza. The authors observe that even interventions that are effective in a public health sense can have profound adverse consequences for civil liberties and economic status. They go on to identify several ethical and human rights concerns associated with behavioral interventions that would likely be used in a pandemic, and they discuss ways to minimize the social consequences of such interventions.
The next essay argues that although laws give decision makers certain powers in a pandemic, those decision makers must inevitably apply ethical tenets to decide if and how to use those powers because “law cannot anticipate the specifics of each public health emergency.” Workshop panelist James LeDuc of the Centers for Disease Control and Prevention (CDC) and his co-authors present a set of ethical guidelines that should be employed in pandemic preparation and response. They also identify a range of legal issues relevant to social-distancing measures. If state and local governments are to reach an acceptable level of public health preparedness, the authors say, they must give systematic attention to the ethical and legal issues, and that preparedness should be tested, along with other public health measures, in pandemic preparation exercises.
LeDuc’s fellow panelist Victoria Sutton of Texas Tech University also considered the intersection of law and ethics in public health emergencies in general and in the specific case of pandemic influenza. In particular, Sutton identified several “choke points”—particularly thorny ethical and legal issues—that present barriers to pandemic mitigation. In addition to the problem of leadership, which is addressed in the next chapter, these issues include the role of interdisciplinary and intersectoral approaches in decision-making; the tradeoffs between personal freedom and public good that are implicit in social-distancing measures; the global implications of quarantine and travel restrictions; the need for consistency among various disease-control policies; and the definition of appropriate, measurable “triggers” for when to impose each potential countermeasure.
The third paper in this chapter considers quarantine, one of the most ethically and legally complex tactics used in combating pandemic disease. In this article, Martin Cetron of CDC and Julius Landwirth of Yale University describe the modern practice of quarantine and its potential implementation as outlined in the U.S. Department of Health and Human Services (HHS) plan for containing pandemic avian influenza. Whenever the possibility of using a quarantine is discussed, they observe, decision makers confront the central dilemma arising from the contrast between public health ethics, which emphasizes collective action for the good of the community, and therapeutic medicine, with its focus on the individual. The authors identify various means to address this tension and offer examples of how ethical considerations can be incorporated into pandemic preparedness plans.
The chapter concludes with a three-part contribution by Joshua Epstein of the Brookings Institution: an informal discussion of the modeling process as it applies to infectious disease containment, followed by two publications in which such models are used to inform strategies for containing smallpox epidemics resulting from bioterrorism. Epstein and his group produce explicit models of disease, and, in the course of doing so, they examine and refine the assumptions upon which each model rests. Epstein observes that while models cannot replace human judgment, they can better inform our choices, and while they cannot eliminate uncertainty, models can identify crucial gaps in knowledge. To support these assertions, Epstein describes how his group collaborates with medical experts to produce disease scenarios and containment strategies (e.g., for smallpox) more robust than would be possible either through pure computation or through expert opinion alone.
Responding to Epstein’s presentation, workshop panelist Timothy Germann, of Los Alamos National Laboratory, observed that models cannot address ethical and legal questions; instead models must be combined with ethical and legal judgments to make policy decisions. Epstein replied to that observation by pointing out the possibility that models of infectious disease containment could be shaped by legal and ethical considerations—introduced in the form of constraints—built into them, much as economic factors have been included in similar models. Moreover, he said, models sometimes provide information that can help resolve ethical dilemmas; for example, projections that reveal little difference in effectiveness between voluntary and mandatory quarantine.
PREPARING FOR PANDEMIC INFLUENZA: LEGAL AND ETHICAL CHALLENGES1
Lawrence O. Gostin, J.D.2
Georgetown University Law Center
Benjamin E. Berkman, J.D., M.P.H.3
Georgetown University Law Center
Highly pathogenic influenza A (H5N1) has captured the close attention of policy makers who regard pandemic influenza as a national security threat. The virus is endemic in bird populations in Southeast Asia, with serious outbreaks also having now occurred in Africa, Europe, and the Middle East (WHO, 2006a, 2007a). Modeling4 suggests that the infection will eventually affect the entire globe through transmission mechanisms involving both birds and humans (Longini et al., 2005). The majority of avian outbreaks in Southeast Asia have been attributed to the movement of poultry and poultry products (Chen et al., 2006; Rosenthal, 2006). Similarly, international trade and travel will play a major role in transmission in human outbreaks, and frequent and widespread travel will make it difficult to contain any pandemic in humans. Even if trade and travel are severely restricted in order to limit human transmission, migratory birds will likely spread the disease by infecting birds on other continents (Normile, 2006).
So far, however, the spread of the H5N1 strain has been confined mainly to animal populations. The virus is highly contagious among birds, and also highly pathogenic (Garrett, 2005), but because of a significant species barrier, the virus is still rare in humans (WHO, 2005b). The first confirmed cases of human infection were reported in 1997. As of May 16, 2007, 306 cases of the current wave of Influenza A (H5N1) have been reported, with 185 deaths (WHO, 2007b). Most cases are attributable to close contact with infected poultry or contaminated surfaces—e.g., poultry farms, markets, backyard pets, and cock-fighting venues (Thorson et al., 2006). A few cases of human-to-human transmission have occurred, principally involving intimate household contact, but the virus is of very limited transmission competence (WHO, 2006b). The virus appears highly pathogenic, with a reported death rate exceeding 50 percent (Wong and Yuen, 2006). However, because of the possibility of under-reporting, the exact prevalence, transmissibility, and fatality rates of H5N1 remain uncertain.
Recent evidence that the 1918 pandemic was caused by an avian influenza virus lends credibility to the theory that the current strain could develop pandemic potential (Taubenberger et al., 2005; Tumpey et al., 2005). Historically, the number of deaths during a pandemic has varied greatly, depending on the number of people who become infected, the virulence of the virus, and the effectiveness of preventive measures (WHO, 2005c). Accurate predictions of mortality are thus difficult to establish, and estimates differ considerably. A mild pandemic, comparable to those in 1957 and 1968, is likely to cause the deaths of from 89,000 to 207,000 people in the United States (Garrett, 2005; Global Security, 2006) and 2 million to 7.4 million people globally (WHO, 2005d). One study that extrapolates from the severe 1918 pandemic finds that, in the absence of intervention, an influenza pandemic could lead to 1.9 million deaths in the United States and 180 million to 369 million deaths globally (Osterholm, 2005).5 A different study, also based on 1918 data, concludes that an estimated 62 million people will die globally, with 96 percent of these deaths occurring in the developing world (Murray et al., 2006). An influenza pandemic would also result in massive economic disruption. At present, the principal economic effects are being experienced in the rural areas of Southeast Asian countries and are fairly limited. They are mostly related to losses of poultry and to governmental control measures such as the culling of birds. Economic losses would become much higher if sustained human-to-human transmissions develops.