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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During a state of emergency, the public safety authority may establish and maintain places of quarantine and isolation, and isolate and quarantine individuals.  Del. Code tit. 20 § 3136(1)(a)-(c).  Orders of quarantine and isolation must be authorized by the Superior Court, and the procedures are set out in Del. Code tit. 20 § 3136(5).  A person may contest an order of quarantine or isolation, has the right to counsel, “…and the State shall provide counsel to indigent persons against whom proceedings are initiated pursuant to this subchapter.”  Del. Code tit. 20 § 3136(7)(b); see also, CDR 16-4000-4202 (Section 6.0)(6.9.2) (“the petitioner shall have the right to be represented by counsel or other lawful representative, and the State shall provide counsel to indigent persons against whom proceedings are initiated pursuant to this section.”).  Individual claims can be consolidated into group claims, if several factors are met including that the “…entire group will be adequately represented in the consolidation, giving due regard to the rights of affected individuals.”  Del. Code tit. 20 § 3136(5)(f)(4).

If there has been no declaration of a state of emergency, a person with a communicable disease, or persons who have been exposed to someone with a communicable disease, may be quarantined or isolated and will be afforded the same due process rights as listed in Title 20, Section 3136 (isolation and quarantine during public health emergency), and outlined above. Del. Code tit. 16 §§ 505, 506.  This includes the right to counsel. 

For tuberculosis specifically, a person contesting the order, can have an administrative hearing before they can be “…ordered to undergo outpatient examination and treatment, directly observed therapy, hospitalization or isolation from the general public in the home…”  Del. Code tit. 16 § 526(a).  For persons with tuberculosis, “if the person is unable to employ counsel, the Division shall petition the Superior Court to forthwith appoint legal counsel for representation in proceedings authorized by this subchapter.”  Del. Code tit. 16 § 526(b).

There is no right to counsel for a person with a sexually transmitted disease (as defined in Del. Code tit. 16 § 701(g)) who is the subject of an order of apprehension, commitment, treatment or quarantine.  However, such person  “…may have an attorney appear on that person’s own behalf at the hearing.” Del. Code tit. 16 § 705(c); see also, § 704 (d)(1).