Dangerous People, Unsafe Conditions: The Constitutional Basis for Public Health Surveillance
24 Pages Posted: 31 Jul 2011 Last revised: 15 Jul 2020
Date Written: 2009
This article reviews the legal framework for administrative surveillance for dangerous people and conditions. Although the theme of this symposium is dangerous people, dangerous people and dangerous conditions cannot be separated in public health jurisprudence. For purposes of this article, the detection of the dangerous mentally ill will be treated as a subset of public health law. Procedurally, the mental health jurisprudence is much richer than the public health jurisprudence, but it is mostly concerned with commitment orders and conditions of confinement and release. Constitutionally, the standards for public health and mental health surveillance are the same.
Surveillance - the collection of data about the incidence and prevalence of conditions that pose a threat to public health and safety - is the starting point for public health. Surveillance provides the data that epidemiologists use to identify threats, test strategies for managing those threats, and, once mitigation strategies are developed, identify dangerous people and conditions that should be subject to public health interventions. There are two types of public health surveillance, searches by public health investigators and reports of specific conditions or individuals by third parties such as physicians, medical laboratories, schools, and counselors. Searches are discussed first, then reporting laws. The article analyzes the distinction between searches subject to full criminal due process standards (probable cause, warrant, and judicial oversight) and public health/administrative searches (warrantless or area warrant searches). The article concludes by identifying the key policy issues for maintaining an appropriate balance between individual privacy and public safety.
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