With the deadly onset of COVID-19 we can all agree that those who are sick with the virus, as well as those in direct contact with sick people, should be quarantined and isolated from the rest of the public. While a seemingly sensible idea, and one which we all hope those afflicted would follow voluntarily, it raises the question: What legal authority does the government have to hold an individual against his will in a hospital or at home? What happens if the individual disagrees and believes they are no longer sick? A similar situation occurred recently in New Rochelle, N.Y., where the Department of Health continued to order the isolation of a number of residents because they either previously tested positive or came into contact with an individual that tested positive. When their lawyer threatened a lawsuit, the DOH relented and realized it no longer had the legal authority to hold these people, relinquishing the quarantine order. It is anticipated that these types of legal questions will continue as COVID-19 spreads and citizens become increasingly weary of self-isolation.

Ordinarily the government may only restrict your liberty in a criminal context, where it has been proven, beyond a reasonable doubt, that an individual has committed a criminal act. Here, quarantine law is strikingly similar to mental hygiene law in that it is the only other area of law where the government may restrict an individual’s liberty not because of a criminal act in the past, but because of something that may occur in the future. Not surprisingly, many of the concepts that are utilized in quarantine law were adopted from mental hygiene law and we can use that similarity to create a more robust and legally defensible framework than what currently exists.

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