This case presents novel issues surrounding a resurging public health catastrophe, tuberculosis (TB). It requires a review of New Jersey's TB control statute to determine if it fulfills due process requirements and if it complies with the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.A. §§ 12101-12213. Specifically, I must decide if there is statutory authority to involuntarily commit a person with TB to a hospital and, if so, the standards and procedures that would allow such a commitment.
I hold that there is such authority and that the standards and procedures applicable to involuntary civil commitments must be followed in applications to commit persons with TB. If those procedures are scrupulously adhered to and the least restrictive means of treatment is determined, the requirements of both due process and the ADA will be fulfilled. I further hold that the procedures employed here complied with due process and the ADA, and that the plaintiff, City of Newark (Newark), proved the need for J.S.'s commitment.
On October 22, 1993, Newark filed a verified complaint with the emergent duty Judge and obtained a temporary commitment order and an order to show cause. Newark sought a final order "committing [J.S.] to [a local hospital] until the State Commissioner of Health shall be satisfied that the person has recovered to the extent that he will not be a menace to the community or to members of his household or that the person will so conduct himself that he will not constitute such a menace." This opinion amplifies oral findings rendered at the Conclusion of the commitment hearing.*fn1
The defendant, J.S., is a 40-year-old African-American male suffering from TB and HIV disease. Hospital authorities requested that Newark intervene when J.S. sought to leave the hospital against medical advice. J.S. was found dressed in street clothes, sitting in the hospital lobby. Once he wandered to the pediatrics ward. He had a prior history of disappearances and of releases against medical advice, only to return via the emergency room when his health deteriorated. Allegedly, J.S. failed to follow proper infection control guidelines or take proper medication when in the hospital and failed to complete treatment regimens following his release. In March of 1993 J.S. had been discharged and deposited in a taxicab, which was given the address of a shelter to which he was to be driven. J.S. was given an appointment at a TB clinic a bus trip away from the shelter. J.S.'s Supplemental Security Income check was being delivered to another hospital, so he had no money. He did not keep his TB clinic appointment and was labeled as "non-compliant."
A sputum sample confirmed that J.S. had active TB.*fn2 TB is a communicable disease caused by a bacteria or bacilli complex, mycobacterium (M.) tuberculosis. One of the oldest diseases known to affect humans, it was once known as consumption or the great "white plague" because it killed so many people. Human infection with M. tuberculosis was a leading cause of death until antituberculous drugs were introduced in the 1940s. While it can affect other parts of the body, such as lymph nodes, bones, joints, genital organs, kidneys, and skin, it most often attacks the lungs. It is transmitted by a person with what is called active TB by airborne droplets projected by coughing or sneezing. When the organism is inhaled into the lungs of another, TB infection can result. Usually this happens only after close and prolonged contact with a person with active TB. Most of those who become infected do not manifest any symptoms because the body mounts an appropriate immune response to bring the infection under control; however, those infected display a positive tuberculin skin test. The infection (sometimes called latent TB) can continue for a lifetime, and infected persons remain at risk for developing active TB if their immune systems become impaired.
Typical symptoms of active TB include fatigue, loss of weight and appetite, weakness, chest pain, night sweats, fever, and persistent cough. Sputum is often streaked with blood; sometimes massive hemorrhages occur if TB destroys enough lung tissue. Fluid may collect in the pleural cavity. Gradual deterioration occurs. If active TB is not treated, death is common.
Only persons with active TB are contagious. That active state is usually easily treated through drugs. Typically a short medication protocol will induce a remission and allow a return to daily activities with safety. A failure to continue with medication may lead to a relapse and the development of MDR-TB (multiple drug resistant TB), a condition in which the TB bacilli do not respond to at least two (isoniazid and rifampin) of the primary treatments, so that the active state is not easily cured and contagiousness continues for longer periods.
Death often results because it takes time to grow cultures and to determine the drugs to which the organism is sensitive. By the time that discovery is made, it may be too late, particularly for a person whose immune system has been compromised by a co-morbidity such as HIV disease. For that reason a wide range of drugs, currently four or five, is tried initially while the cultures are grown and sensitivities detected, particularly if MDR-TB is suspected. Once sensitivities are discovered, medication can be adjusted so that ineffective drugs are eliminated and at least two effective drugs are always used. Medical treatment protocols have been established by the United States Centers for Disease Control and Prevention (CDC) and the American Thoracic Society. These protocols are being used for J.S. as they are for all patients under the supervision of New Jersey's Tuberculosis Control Program.
Active TB of the lungs is considered contagious and requires immediate medical treatment, involving taking several drugs. Usually, after only a few days of treatment, infectiousness is reduced markedly. After two to four weeks of treatment, most people are no longer contagious and cannot transmit TB to others even if they cough or sneeze while living in close quarters. Usually exposure over a prolonged time is required, and less than thirty per cent (30%) of family members living closely with an infected person and unprotected by prophylactic drugs will become infected by the patient with active TB. On the other hand, transmission has been known to occur with as little as a single two-hour exposure to coughing, sneezing, etc., of a person with active TB. To cure TB, however, continued therapy for six to twelve months may be required. Failure to complete the entire course of therapy risks a relapse and the development of MDR-TB.
MDR-TB results when only some TB bacilli are destroyed and the surviving bacilli develop a resistance to standard drugs and thus become more difficult to destroy. This resistance may involve several drugs and directly results from a patient's failure to complete therapy. There have been no reports of TDR-TB (totally drug resistant TB) in New Jersey, so J.S. can be cured if effective drugs are found in time.
TB is more serious in persons with impaired immune systems, which can result from poor health, chronic abuse of alcohol or drugs, old age, chemotherapy for cancer, or HIV infection. Such persons are more likely to develop active TB if they already harbor the TB bacilli. By way of example, ninety per cent of persons with latent TB (these persons are neither sick nor contagious) and with an intact immune system will never develop active TB during their entire lives. On the other hand persons with HIV disease with latent TB will develop active TB at the rate of eight per cent per year.
The human immunodeficiency virus is the cause of acquired immune deficiency syndrome (AIDS). HIV infection weakens the body's natural ability to fight disease. As the immune system deteriorates, those infected with HIV may become clinically ill with many serious illnesses. These are called opportunistic diseases and include pneumonia, some forms of cancer, fungal and parasitic diseases, certain viral diseases, direct damage to the nervous system, and TB. Persons infected with HIV are at much greater risk of developing active TB if they have latent TB. Once a person with HIV disease develops one of these opportunistic diseases, that person is classified as having AIDS.
New Jersey's statutory scheme for dealing with TB dates from 1912 when the predecessor to N.J.S.A. 30:9-57 was first adopted.*fn3 only minor amendments have been made since 1917.*fn4
This law allows me to enter an order committing a person to a hospital if he or she is "suffering from" TB and "is an actual menace to the community." Notice of the hearing is required and was provided. Neither the statute nor the implementing regulation, N.J.A.C. 8:57-1.10, provides any guidance on the procedures to follow when such applications are made, nor what standards are to be used in issuing such orders. There is no case law in New Jersey providing guidance on these and many other related issues.
The regulatory schemes in other jurisdictions vary widely. Gostin, Controlling the Resurgent Tuberculosis Epidemic: A 50-State Survey of TB Statutes and Proposals for Reform, 269 J. Am. Med. Assoc. 255 (1993). There are older schemes like that in New Jersey which provide little or no guidance. There are those that provide detailed procedural details to guarantee due process while still allowing detention, isolation, quarantine, or confinement in the most extreme cases.*fn5
New York City's health code amendments, 24 R.C.N.Y. § 11.47 (1993), are important because the magnitude of Newark's TB problem is exceeded only by New York City.*fn6 They are also notable because they recognize that other means short of isolation may be available to promote adherence to therapy regimens. They authorize the Commissioner of Health (Commissioner) to order adherence with the threat of isolation only after disobedience to less confining restrictions. 24 R.C.N.Y. § 11.47(f)(1)(iii).
Procedurally, New York provides for automatic release unless the Commissioner obtains an order permitting continued detention. 24 R.C.N.Y. § 11.47(e). Even where a person has not requested release, court review and approval is required whenever detention may last more than 60 days. Id. Periodic judicial review is required in all instances, and the Commissioner must prove by clear and convincing evidence that detention is necessary. Id. Details even require assistance for those needing language interpreters and those with hearing or vision impairments. 24 R.C.N.Y. § 11.47(h).
Newark's attempt to protect the health of its citizenry is an archetypical expression of police power. Ogden v. Gibbons, 22 U.S. 1, 6 L. Ed. 23 (1824) (dicta that a state has the power "to provide for the health of its citizens" by quarantine). Cf., Jacobson v. Massachusetts, 197 U.S. 11, 25 S. Ct. 358, 49 L. Ed. 643 (1905) (compulsory vaccinations upheld against substantive due process challenge because societal interest in health can overcome individual rights). The claim of "disease" in a domestic setting has the same kind of power as the claim of "national security" in matters relating to foreign policy. Both claims are very powerful arguments for executive action. Both claims are among those least likely to be questioned by any other branch of government and therefore subject to abuse. The potential abuse is of special concern when the other interest involved is the confinement of a human being who has committed no crime except to be sick.
Due process limits police power. The Fourteenth Amendment requires "that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Trust Co., 339 U.S. 306, 317, 70 S. Ct. 652, 656, 94 L. Ed. 865, 873 (1950). The parameters of due process require an analysis of both the individual and governmental interests involved and the consequences and avoidability of the risks of error and abuse. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33 (1976). Here the clash of competing interests is at its peak. Hardly any state interest is higher than protecting its citizenry from disease. Hardly any individual interest is higher than the liberty interest of being free from confinement. The consequences of error and abuse are grave for both the state and the individual.
The United States Supreme Court has recognized that "civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington v. Texas, 441 U.S. 418, 425, 99 S. Ct. 1804, 1809, 60 L. Ed. 2d 323 (1979). Our Supreme Court in In re S.L., 94 N.J. 128, 462 A.2d 1252 (1983) had occasion to collect authority on what this meant. A person has the right to notice, counsel, and must be afforded the opportunity to present opposing evidence and argument, and to cross examine witnesses. In re S.L., supra, 94 N.J. at 137 citing Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254, 63 L. Ed. 2d 552 (1980). Illness alone cannot be the basis for confinement. O'Connor v. Donaldson, 422 U.S. 563, 95 S. Ct. 2486, 45 L. Ed. 2d 396 (1975). To justify confinement it must be shown that the person is likely to pose a danger to self or to others. State v. Krol, 68 N.J. 236, 257, 344 A.2d 289 (1975). The proofs must show that there is a "substantial risk of dangerous conduct within the foreseeable future." Id., at 260. These proofs must be shown by clear and convincing evidence. Addington v. Texas, supra, 441 U.S. at 434, 99 S. Ct. at 1813, 60 L. Ed. 2d at 335. The terms of confinement must ...