Right to counsel

NOTE: this is a very complex area of law, especially as it relates to stay-at-home orders issued by the states.  Please read our primer on quarantine/isolation law before reading this specific state law.

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In general, the Department of Health and Human Services has the authority to "...establish procedures for the control, detection, prevention and treatment of communicable, environmental and occupational diseases..."  Me. Rev. Stat. Ann. tit. 22, § 802(1)(D).  The department may seek to impose a public health measure on an individual or owner of property.  A "public health measure" can include "commitment to a facility that will provide appropriate diagnosis, care, treatment or isolation of the individual without undue risk to the public health."  Me. Rev. Stat. Ann. tit. 22, § 812(1)(F).  To impose a public health measure the department will file a petition in District Court.  Me. Rev. Stat. Ann. tit. 22, § 811(2).  The "subject of the petition” is the "...person or the property upon which a public health measure is sought to be imposed pursuant to section 812.”  Me. Rev. Stat. Ann. tit. 22, § 811(1). To issue a court order for the public health measure, the court must find a "public health threat" exists, which is defined as "any condition or behavior that can reasonably be expected to place others at significant risk of exposure to a toxic agent or environmental hazard or infection with a notifiable disease or condition."  Me. Rev. Stat. Ann. tit. 22, § 812(1); and, § 801(10) .  It is unclear whether a public health measure can be imposed on a designated area, such as a neighborhood. 

In a hearing to determine whether a public health measure should be imposed on an individual, "...the subject of the petition shall be afforded an opportunity to be represented by counsel and, if the subject is indigent and requests counsel, the court shall appoint counsel.”  Me. Rev. Stat. Ann. tit. 22, § 811(6)(C).  A person refusing a physical examination for communicable disease, also has the right to counsel.  Me. Rev. Stat. Ann. tit. 22, § 809 (referencing procedures for a hearing under § 811).  A person subject to a court proceeding for a mandatory blood-borne pathogen test, also has a right to counsel.  Me. Rev. Stat. Ann. tit. 22, § 832(2)(C).

In an extreme public health emergency, the Department may issue orders of quarantine and isolation against an individual or group. 10-144-258 Me. Code R. § 10(C)(2).  In addition, the Department may, without prior court order, “...take a person into custody and order prescribed care of that person...”  Me. Rev. Stat. Ann. tit. 22, § 820(1)(B)(1).  Prescribed care is defined as "isolation, quarantine, examination, vaccination, medical care or treatment ordered by the department or a court pursuant to section 820."  Me. Rev. Stat. Ann. tit. 22, § 801(8-A).  Within 48 hours, a hearing must be held and notice of the hearing must specify that the person has a right to counsel.  Me. Rev. Stat. Ann. tit. 22, § 820(2)(A) & (B).  The Code of Maine Rules further specifies that in quarantine or isolation, access to legal services must be provided.  10-144-258 Me. Code R. § 10(C)(2)(a)(x).  However, there is no indication, in the extreme public health emergency statute nor the rules, that counsel shall be appointed if one cannot be afforded, and no reference to appointment as prescribed in Me. Rev. Stat. Ann. tit. 22, § 811(6).