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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“[If the] State Health Director reasonably suspects that a public health threat may exist and that the threat may have been caused by a terrorist incident using nuclear, biological, or chemical agents,” she can limit the freedom of movement of persons contaminated with or reasonably suspected of being contaminated with nuclear, biological, or chemical agents, and limit access to an area or facility housing the persons whose freedom has been limited.  N.C. Gen. Stat. § 130A-475(a)(4) & (5).  “Any person substantially affected by that limitation [of freedom of movement or access] may institute…an action to review the limitation.”  N.C. Gen. Stat. § 130A-475(b).  The person contesting the limitation is entitled to representation “…by counsel of the person’s own choice or if the person is indigent, the person shall be represented by counsel appointed in accordance with Article 36 of Chapter 7A of the General Statutes and the rules adopted by the Office of Indigent Defense Services.” Id.

For communicable diseases, the State Health Director and the local health director have quarantine and isolation authority as defined in N.C. Gen. Stat. § 130A-2(3A) & (7A); see also, N.C. Gen. Stat. § 130A-145(a).  “Quarantine authority” is the “…authority to issue an order to limit the freedom of movement or action of persons or animals which have been exposed to or are reasonably suspected of having been exposed to a communicable disease or communicable condition for a period of time as may be necessary to prevent the spread of that disease.  It also means the authority to issue an order to limit access by any person or animal to an area or facility that may be contaminated with an infectious agent.  The term also means the authority to issue an order to limit the freedom of movement or action of persons who have not received immunizations against a communicable disease when the State Health Director or a local health director determines that the immunizations are required to control an outbreak of that disease.”  N.C. Gen. Stat. § 130A-2(7A).  “Isolation authority” is “…the authority to issue an order to limit the freedom of movement or action of persons or animals that are infected or reasonably suspected to be infected with a communicable disease or communicable condition for the period of communicability to prevent the direct or indirect conveyance of the infectious agent from the person or animal to other persons or animals who are susceptible or who may spread the agent to others.”  N.C. Gen. Stat. § 130A-2(3A).

“Quarantine and isolation authority shall be exercised only when and so long as the public health is endangered, all other reasonable means for correcting the problem have been exhausted, and no less restrictive alternative exists.”  N.C. Gen. Stat. § 130A-145(a).  Where isolation or quarantine “…limits the freedom of movement of a person or animal or of access to a person or animal whose freedom of movement is limited,” then any person who is substantially affected can initiate an action to review the limitation.  N.C. Gen. Stat. § 130A-145(d).  The person is “…entitled to be represented by counsel of the person’s own choice or if the person is indigent, the person shall be represented by counsel appointed in accordance with Article 36 of Chapter 7A of the General Statutes and the rules adopted by the Office of Indigent Defense Services.”  Id.

The right to counsel in these proceedings is also codified in N.C. Gen. Stat. § 7A-451(a)(17).  It is also mentioned in the Pandemic Emergency Bench Book for Trial Judges (2009), “A person seeking review of a(n) isolation/quarantine order is entitled to an attorney, and one must be appointed if such a person demonstrates he or she is indigent.” (p. 7).