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 Department of Health has “ultimate authority in matters of quarantine and isolation.”  O.R.C. Ann. § 3701.13.  The local board of health (of a city or general health district) can also impose quarantine.  O.R.C. Ann. § 3707.04; see also, § 3707.08.  The statutory provisions relevant to dangerous communicable diseases are set out in O.R.C. Ann. Chap. 3707.  Quarantine and isolation are specifically permitted but the process to issue orders of quarantine and isolation is not set out in the statute.  ORC Ann. §§ 3708.08, and 3707.09.  The administrative code provisions related to communicable disease set out isolation procedures for specific diseases, but there is no discussion of due process, a right to contest the actions, or right to counsel.  O.A.C. Ann § 3701-3-13.  In addition, “The director of health, the board of health of a general or city health district, or any person charged with enforcing the rules of the department of health as provided in section 3701.56 of the Revised Code may petition the court of common pleas for injunctive or other appropriate relief requiring any person violating a rule adopted by or any order issued by the director of health under this chapter to comply with such rule or order.”  ORC Ann. § 3701.57.

It is not clear whether there is a right to counsel for quarantine and isolation.  Section D of the Public Health Preparedness Bench Book: A Guide for the Ohio Judiciary & Bar (discusses the care of quarantined and isolated people).  Section (D)(4)(c)(v)(A)(2), mentions a right to counsel but references Chapter 5122 of the statutory code, which concerns the Hospitalization of the Mentally Ill.  There is no reference to authority indicating that procedures under that Chapter would apply to people who are quarantined or isolated due to disease.  The Ohio Department of Health’s document entitled “Limitations on Movement and Infection Control Practices” mentions the right to counsel only in regard to Tuberculosis control (page 64). 

The Director of the Department of Health can adopt rules specific to the treatment of persons with tuberculosis.  See O.R.C. Ann. § 3707.146.  Statutory provisions related to tuberculosis control are set out in O.R.C. Ann. §339.71 – .89.  An individual diagnosed with active tuberculosis is responsible for compliance with a treatment regimen, avoidance of public places and gatherings, notification of their intent to travel, and, for one who cannot be maintained outside of a hospital, submission to hospitalization.  O.R.C. Ann. § 339.82.  If a person does not comply with these responsibilities, the “tuberculosis control unit” can issue an order for compliance.  O.R.C. Ann. §§ 339.83, and 339.84.  If there is non-compliance with the order, the unit can apply to the court for an injunction.  O.R.C. Ann. § 339.85.  In addition, “If the tuberculosis control unit believes that an individual’s failure to comply with its order involves an immediate danger to the public health, the unit may request that the court issue an injunction without granting the individual an opportunity for a prior hearing or that the court hold an expedited hearing on the matter.”  Id.  Where the person has failed to comply with the injunction, the unit can request a court order “…under which the unit is granted the authority to detain the individual in a hospital or other place to be examined or treated for tuberculosis.”  O.R.C. Ann. § 339.86(A).  The appointment of counsel for tuberculosis is discretionary.  “During any proceeding pertaining to an individual’s detention or proposed detention, the individual has the right to be represented by counsel.  If the individual is indigent, the individual may apply for court-appointed counsel.  The court may appoint counsel for the individual if it determines that the individual is indigent.”  O.R.C. Ann. § 339.86(C).