"Bench Book" on PA Public Health Law

"In an age when political unrest, global travel and emerging biological threats can combine to create social, political and economic havoc worldwide, Pennsylvania’s court system may be required to address unprecedented challenges."

-- Foreword, Pennsylvania Public Health Law Bench Book (Feb, 2007)

The Administrative Office of Pennsylvania Courts has issued two Press Releases -- one dated March 13, 2007, and a second dated May 21, 2007, announcing availability of the Pennsylvania Public Health Law Bench Book (PDF, 123 pages), and promoting its use by courts and their associated judicial administration organizations.

The first Press Release announced that the Pennsylvania Supreme Court had "distributed a Public Health Law Benchbook to state judges, preparing them for the unprecedented challenges they would face should a major public health threat such as a pandemic hit the United States."

The second Press Release emphasized the importance of the Bench Book:

Public health experts say that it is not a question of "if" but "when" the next pandemic like the avian flu will occur again in the United States.

Pennsylvania court officials are not waiting for that day but proactively preparing now for the unprecedented challenges that would come with a major public health threat and they are encouraging other state court officials to do the same.

The purpose of the Bench Book is stated in its introduction (in a long sentence that I felt compelled to parse & edit into more readable bullet points):

For a number of reasons, those challenges will be particularly difficult --

• Pennsylvania’s public health law is a patchwork of statutes and state and local regulations that predate contemporary Constitutional due process standards;
• Defining federal and state jurisdictional boundaries in a public health context can be problematic;
• Pennsylvania public health case law dates primarily to the late 19th and early 20th centuries;
• The liberty restrictions on individual citizens which arise in a public health context are civil in nature and unfamiliar to judges more comfortable in dealing with such issues in a criminal context; and, finally,
• In the public health arena traditional individualized, deliberative judicial process may result in delay that, literally, becomes a matter of life and death.

Recognizing these complexities, the Administrative Office of Pennsylvania Courts developed this bench book to provide Pennsylvania judges with the critical information they will need to have when they are presented with public health cases.

In collaboration with the University of Pittsburgh’s Graduate School of Public Health Center for Public Health Preparedness, the AOPC convened researchers, writers, and a board of editors who have worked for the past year on this project.

Given the nature of the threats that confront us, it is important to note this is ongoing work. It will be expanded, updated, and corrected as time, circumstances, and changes in the law require. * * *

This bench book is intended to be a practical and useful resource. While it was written for Pennsylvania judges, we have drawn on the work being done in other states to address problems and issues that are national, even international, in scope.

We hope our work will contribute to the collective and ongoing effort of judges around the country who are committed to preserving the rule of law in the face of unprecedented challenges.

The Bench Book is divided into three sections:

• Section One contains a set of public health law Bench Guides which provide concise responses to the key questions that will arise when specific public health issues come before the court.
• Section Two is analysis and background information on some of the legal issues the court may be called on to consider.
• Section Three provides a glossary of public health related terminology, model orders and a table of cases. In the bench book CD format, all material is hyperlinked to original sources.
  

The Bench Book acknowledges its authors, its editors, and its contributors. This cast of characters alone is sufficient evidence testifying about the importance placed on these matters by the judicial system in Pennsylvania, and the need for solutions to potential widespread problems:

Principal writing and research of this bench book was performed by Darren M. Breslin, Esq. and Owen J. Kelly, Esq., AOPC staff attorneys, and Elizabeth Ferrell Schmidt, Esq. and Patricia M. Sweeney, JD, MPH, RN of the University of Pittsburgh Center for Public Health Preparedness.

The editorial board consisted of Judge Mark I. Bernstein of Philadelphia County, Judge John A. Bozza of Erie County, President Judge John M. Cleland of McKean County, Grace R. Schuyler, Esq., Office of Legal Counsel, Pennsylvania Department of Health, and Zygmont A. Pines, Esq., Pennsylvania State Court Administrator.

Special appreciation is extended to Daniel Stier, Esq. and the Centers for Disease Control and Prevention Public Health Law Program, Caroline S. Cooper of American University, Doctors Caroline C. Johnson and Esther D. Chernak of the Philadelphia Department of Public Health, AOPC Assistant Court Administrator Andrea Tuominen, AOPC legal intern Joseph DiGuglielmo, UPCPHP legal intern Caleb Wallace, and especially to Judge Linda L. Chezem, retired Judge of the Indiana Court of Appeals, and who is a pioneer is the work of alerting judges to the challenges presented by public health law and teaching judges what they need to know to perform their critical functions in a democratic society.

Dispute resolutions regarding health laws occur in certain state or federal administrative agencies or the Courts of Common Pleas, with enforcement variously by health organizations, interested persons, and the Commonwealth through its "parens patriae" powers, and with rights of appeal within federal or state court systems, as explained in Sections 2.20-2.25 of the Bench Book.

The Orphans' Court Division is not involved at all in public health matters. In fact, upon a search of the Bench Book, the terms "orphans" (as in Orphans' Court Division") or "fiduciary" are not found anyway in that document.

I mention the Bench Book on this blog due to general issues of public health & safety, not because the publication specifically addresses elder care or senior services. I also note it because this publication is a fine example of advance planning involving the Pennsylvania court system.

The Bench Book is cited in the second Press Release as one of many planned components for change in Pennsylvania's Unified Judicial System:

Preparing and issuing the bench book is among a number of Supreme Court of Pennsylvania initiatives to modernize and improve the state court system's ability to effectively provide services to its citizens.

These initiatives include court safety and security, specialty courts, trained court interpreters, statewide judicial automation and access to court information, and responding to needs of families and children involved in court proceedings.

Where does the Orphans' Court Division fit into this overall vision? I'll reflect on that concern tomorrow.