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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The Commissioner of the Department of Health has the power to “declare quarantine whenever, in the commissioner’s judgment, the welfare of the public requires it.”  Tenn. Code Ann. § 68-1-201(a)(1).  Violation of quarantine order is a Class B misdemeanor.  Tenn. Code Ann. § 68-1-203; see also, Tenn. Code Ann. § 68-5-104(b) (“Any person isolated or quarantined in accordance with any statute or rule or regulation promulgated and published in accordance with statutes relating to isolation or quarantine, who willfully escapes from such isolation or quarantine, commits a Class B misdemeanor.”)

Chapter 1200-4-04 of the Tennessee Rules and Regulations, entitled Disease Control Health Threat Procedures, “…outlines procedures to be followed by the Commissioner, health officers, and their designees, in carrying out disease control enforcement activities involving persons or premises that pose a health threat to others.”  Tenn. Comp. R. & Regs. R. 1200-14-04-.01.  A health threat to others is defined as a “direct threat of endangerment to others due to the presence of a cause or source of a disease on premises, or due to the inability, unwillingness, or failure of a carrier to act in such a manner as to not place others, without their consent, at significant risk of exposure to, based on the reasonable medical judgment and clinical or epidemiological understanding of public health authorities, a disease that may cause serious illness, disability, or death.”  Tenn. Comp. R. & Regs. R. 1200-14-04-.02(12) (definition shortened).

When the Commissioner or a health officer reasonably believes that someone is a health threat to others, they can issue a health directive, which can include isolation or quarantine.  Tenn. Comp. R. & Regs. R. 1200-14-04-.04(1), and (2). The health directive can only be issued to an individual.  Id., at (1).  (“A health directive shall be individual and specific and shall not be issued to a class of persons.”). Quarantine of an entire area is not addressed. The person subject to the directive can request a review by the Chief Medical Officer.  Id., at (7).  There is no mention of the right to or appointment of counsel for this particular review, but “nothing in this Rule shall preclude a person to whom a health directive is issued from consulting with and being assisted by legal counsel.” Id., at (9).

Where a person is unable, unwilling, or failing to comply with the health directive, the Commissioner or health officer have the authority to file a petition in court for a temporary hold and / or a public health measure.  Id., at (5).  In an emergency, the Commissioner or health officer can petition the court for a temporary hold of the person deemed to be a health threat to others.  Tenn. Comp. R. & Regs. R. 1200-14-04-.05(1).  Without their consent, a person cannot be held under this provision for more than five working days without a hearing. Id., at (2).  The hearing is held pursuant to Tenn. Comp. R. & Regs. R. 1200-14-04-.06(3) (addressed below).  Where there is no emergency, or where the temporary hold must exceed fifteen working days, the Commissioner or health officer can file a petition for a public health measure.  Tenn. Comp. R. & Regs. R. 1200-14-04-.06.  Notice of the hearing on a petition for a public health measure must inform the person of their “…right to counsel, including the right, if indigent, to counsel appointed by the court.” Id., at (3)(d). The decision can be appealed, or the person can seek a writ of habeas corpus. Id., at (4).

Tuberculosis and sexually transmitted diseases are set apart in the statutory code Title 68, Chapter 9 and Chapter 10 respectively. A right to counsel in proceedings for the commitment of persons with tuberculosis, or isolation of persons with a sexually transmitted disease, is not addressed in the statute. See Tenn. Code Ann. § 68-9-206 (Tuberculosis), and Tenn. Code Ann. § 68-10-110 (Sexually Transmitted Diseases). However, tuberculosis is mentioned in the definition of a “health threat to others” (above), and the right to counsel might apply.