Principles and Practice of Legal Triage During Public Health Emergencies
New York University Annual Survey of American Law, Forthcoming
Posted: 30 Jan 2009 Last revised: 2 Feb 2009
Date Written: January 30, 2009
Legal preparedness is an essential component of emergency response. One of the most significant and under-appreciated challenges of legal preparedness is the ability of legal practitioners and others to assess in real time the changing legal environment during declared emergencies that threaten the public's health. While knowledge of existing emergency laws and effective planning within the public health workforce are critical to emergency preparedness, neither can fully anticipate the legal changes that will occur during health-related crises. The flexibility and additional powers authorized via emergency statutes are designed to facilitate responses, but can also create uncertainties on questions of authority, public health powers, and leadership. This article presents the concept of legal triage as a means for understanding and responding to the legal challenges that invariably arise during declared emergencies. After illustrating the need and scope of legal triage, the article discusses legal triage in three specific challenges that have featured prominently during recent public health emergencies: allocation of scarce resources, liability protection for volunteer health practitioners, and inter-jurisdictional coordination of military personnel. The goal of the Article is to emphasize that extemporaneous legal assessment is a necessary challenge during emergencies and one which - when skillfully met - can facilitate public and private sector responses to improve morbidity and mortality.
Keywords: Public Health Emergency, Legal Preparedness, Legal Triage
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