Editor's Note: I wrote this as the final assignment for Quinnipiac University Prof. John Thomas' comparative health law class. Prof. Thomas taught the class at Trinity College in Dublin in June 2007. It seems apropos to post now, just keep in mind that while voters have elected new chief executive officials for two of the three countries at issue, the policies at issue have not altered. And apologies in advance for the academic voice.

 

Quarantine and Western Democracies: Comparing Influenza Pandemic Response Plans of Canada, Australia and the United States of America

 

The dangers of a new influenza pandemic cannot be underestimated, according to the World Health Organization.

 

"With the increase in global transport and communications, as well as urbanization and overcrowded conditions, epidemics due the new influenza virus are likely to quickly take hold around the world," the WHO's website states.

 

Broad consensus exists among nations that the planet must not allow a repeat of the 1918 influenza pandemic that killed between 20 to 50 million people. Modern science has demonstrated that influenza viruses mutate every quarter of a century or so and infect people anew.

 

The last major mutation occurred in 1968, and with the Avian Bird flu's appearance in 2003 in Asia, health leaders across the planet pushed countries to formulate their pandemic response plans.

 

Countries generally agree on the hazards and the genetics of the influenza virus, but comparing the detailed response plans among three major Western industrialized democracies demonstrates that no scientific or legal consensus exists on how to slow or stop the spread of the virus within national borders.

 

Between Canada, Australia and the United States – all of which share an English common-law legal background and an Enlightenment scientific heritage – the U.S. stands along in calling for a militaristic response to a pandemic crisis in the form of the community quarantine measure of cordon sanitaire, or garrisoning neighborhoods and preventing people from coming or going.

 

The Canadian plan notes that the unproven science of cordon sanitaire does not justify its usage, whereas the Australian health ministry suggests milder quarantine steps. U.S. President George W. Bush suggested in October 2005 that cordon sanitaire could be enforced through military rule.

 

Geographical, Social and Political Evaluation

 

Examining the basic context of the laws in terms of population, government type and health care system is fundamental to this analysis. It should be noted that all three countries are members of the United Nations and the WHO, and in each of their pandemic response plans, mention the WHO’s global cooperation plan in event of influenza pandemic.

 

Canada is a vast country of 33 million spread across almost 10 million square kilometers. The Canadian population is generally of European descent (28 percent British, 26 percent mixed background, 23 percent French, 15 percent European, 2 percent Amerindian, and 6 percent Asian, African, or Arab), according to the CIA World Factbook.

 

Canada is part of the Commonwealth of the English monarchy, and thus, as the CIA Fact Book describes, it is a “constitutional monarchy that is also a parliamentary democracy and a federation.” It’s legal system derives precedent from English common law, except in Quebec, the only of its provinces dominated by a French history.

 

The Ministry of Health, an executive branch agency, runs its nationalized health care system. The executive branch is currently presided over by the conservative Stephen Harper.

 

The federal ministry delegates daily operations of the socialized medical system and state hospitals to provincial health ministers, but the centralized health ministry crafted its pandemic response plan. Not all health care facilities are public owned and maintained, as private not-for-profit insurance entities operate within the country.

 

With an average life expectancy of 80.34 years, the World Health Organization’s 2007 World Health Report ranked Canada’s system 30th in the world.

 

Australia shares a similar population density to Canada, as its population of 20.5 million inhabits a land mass of 7.7 million square kilometers, according to the CIA World Fact book. The Australian population is significantly more homogeneous than Canada, where whites of European descent comprise 92 percent, Asians percent and Aboriginals about 1 percent.

 

Australia is a federal parliamentary democracy with a Constitution, and its judicial system is based on English common law. Conservative John Howard was previous the Australian prime minister. Kevin Rudd of the more liberal Labor Party won the seat in 2007.

 

Comparable to Canada, The Australian Department on Health and Ageing, an executive branch agency, coordinates the nationalized health care system. And like Canada, not all health care facilities are public owned and maintained, as private not-for-profit entities deliver insurance and services.

 

Australians can expect to live for 80.62 years, and their health care system is rated 32 by the WHO’s 2007 report.

 

With 301 million citizens, the United States contains multitudes more people than Australia or Canada, but occupies a similar sized terrain to both countries, as the U.S. sits on 9.8 million square kilometers. According to the CIA World Fact Book, the American population is similarly homogenous, at 81.7 percent white, 12 percent black, 4 percent Asian, and 2 percent other, like Amerindian. But the CIA fails to distinguish between Latinos and white in its analysis, which has some impact on the culture of health care.

 

The American government is a constitutionally-based federal republic, according to the CIA, "with a strong democratic tradition." It's legal system is based on English common law. Like Canada and Australia, it has a bicameral legislature.

 

While the U.S. Congress sets health policy, no nationalized directive exists, and a patchwork of public and private entities and insurance companies provide medical service. The Department of Health and Human Services, a Cabinet-level agency in the executive branch, drafted and would delegate authority to coordinate the public health pandemic response plans to the Atlanta-based Centers for Disease Control.

 

HHS and CDC derive authority from both legislative mandates like the Public Health Service Act (42 USC 264) and Presidential Executive Orders, like 13295 of April 4, 2003, as amended by Executive Order 13375 of April 5, 2005, which adds influenza to the list of the potential pandemic-causing federal quarantinable diseases.

 

Americans can expect to live 78 years. The WHO's 2007 report ranks the American health care system 37th in the world.

 

The size and homogeneity of the respective populations of these three countries differ significantly. However, they make for good comparison because they are Western industrial democracies sharing an English legal heritage and although compositionally dissimilar, the WHO ranks the three health care systems similarly.

 

Pandemic Response Plans in Canada and Australia  – Contact Tracing and Home-Based Quarantine

 

Most importantly, all three countries define the influenza viral threat consistently, and all have crafted significant response plans to a potential pandemic.

 

All three countries agree that the incubation period of any novel strains of an influenza virus is one to three days, and the communicability stage of the viral infection is three to five days. And all three countries agree that without an effective vaccine, controlling the spread of the disease will be difficult. Plus, they all agree that management of fear and perception of the disease is essential to enlisting the public's support in curtailing any pandemic.

 

"Specifically, the short incubation period, high infectiousness, ability of the virus to survive for extended periods of time on environmental surfaces, non-specific clinical symptoms, and potential for asymptomatic infection and spread from asymptomatic individuals greatly limits the effectiveness and feasibility of most traditional public health control measures," states Section 7.1 of Annex M of The Canadian Pandemic Influenza Plan for the Health Sector by the Public Health Agency of Canada.

 

The Canadian experience with SARS provided an experiential framework for the drafters of the current pandemic response plan, as "no vaccine or virus-specific drugs were available for treatment or prophylaxis; therefore, the need to effectively isolate communicable cases and identify and quarantine their respective contacts became paramount."

 

However, the Canadian report states, "A recent modeling exercise concluded that influenza would be 'difficult to control even with 90% quarantining and contact tracing because of the high level of presymptomatic transmission.'"

 

"Because the potentially high attack rate of a novel virus in the general population will stretch all existing health care resources, ideally planners should consider dedicating resources only to measures that will effectively mitigate the impact of the pandemic. Unfortunately most community-based measures under consideration, including the widespread use of masks, cancellation of public gatherings and closure of schools and businesses, have been anecdotally reported to be ineffective, or their effectiveness has not been formally evaluated."

 

Additionally, the Canadian plan states that "If contacts are promptly identified (i.e. within the incubation period), quarantine them or at a minimum ask them to restrict contact with others for 3 days after last exposure to the case or for the duration of the incubation period, whichever is longer.”

 

The Australian National Action Plan for Human Influenza Pandemic (.pdf) is divided into four specific parts, where the first three focus on the government response and the final approaches citizen opportunities for readiness. In part II, the Australian Health Ministry indicates that it is stockpiling surgical masks.

 

The Australian Quarantine and Inspection Service stands at the ready to assist in efforts to detain potentially infected travelers, citizens and contacts of those two designations of persons. The document expresses that infected persons should be isolated and contacts of theirs should be quarantined.

 

However, quarantine of those contacts will be short term. The Chief Medical Officer (CMO) is designated as the agent in charge of quarantine, and “has extensive powers under the Quarantine Act, including the ability to restrict the movement of people into Australia and within Australia to protect human health.”

 

The Australian pandemic response plan, when discussing measures to contain the virus, differentiates between home quarantine for air travelers and ship passengers. It uses conditional language like "Home-based quarantine … could involve asking returning travelers to remain at home for a period (up to a week) until it is clear that they are not infected." In home-based quarantine, authorities would be in daily contact with patients.

 

Home quarantine would end when the person is either no longer ill or after seven days, when they show no symptoms of illness.

 

As far as restrictions on movement, the report, in Section 3.3, notes that certain areas may be quarantined, and if so, authorities will provide necessities to those stuck in the situation.

 

If containment fails, the government prescribes closure of schools and public places in the event of widespread outbreak. "Depending on circumstances, the authorities may move from a containment strategy to a strategy for maintaining social functions in one area of Australia, but not another," the report says.

 

While Australia takes a few more steps towards the radical abrogation of liberties than Canada, considering that Australia is closer to the source of Avian flu outbreaks, it makes potential sense.

 

Quarantine and Cordon Sanitaire in the United States

 

But Australia does not go as far as the United States, where the steps taken in extreme measures by the Department of Health and Human Services Pandemic Influenza Plan include cordon sanitaire. The containment strategy begins with "snow days": "asking everyone to stay home—involves the entire community in a positive way, is acceptable to most people, and is relatively easy to implement.  Snow days may be instituted for an initial 10-day period, with final decisions on duration based on an epidemiologic and social assessment of the situation."

 

While the language indicates something short and minor, the 10 day prescriptions is by three days longer than the longest periods suggested by the Canadian and Australian health authorities for quarantine. The language used in the U.S. plan acknowledges the need for public acceptance of the plan, and seemingly tries to sugar coat the severe measures.

 

If snow days fail to stem the spread of the flu outbreak, the government may consider shutting down schools, shopping malls, office buildings and mass transit. However, the U.S. report acknowledges the shaky science of the proposition:

 

"Although data are limited, school closures may be effective in decreasing spread of influenza and reducing the overall magnitude of disease in a community...Anecdotal reports suggest that community influenza outbreaks may be limited by closing schools. Results of mathematical modeling also suggest a reduction of overall disease, especially when schools are closed early in the outbreak."

 

If the U.S. government judges that "Sustained novel influenza virus transmission in the area, with a large number of cases without clear epidemiologic links to other cases; control measures aimed at individuals and groups appear to be effective," then "Public heath officials may consider the use of widespread or community-wide quarantine, which is the most stringent and restrictive containment measure."

 

Cordon sanitaire, the report says, is more like snow days than outright quarantine. "'Widespread community quarantine' involves asking everyone to stay home.  It differs from snow days in two respects: 1) It may involve a legally enforceable action, and 2) it restricts travel into or out of an area circumscribed by a real or virtual 'sanitary barrier' or 'cordon sanitaire' except to authorized persons, such as public heath or healthcare workers."

 

On Oct. 4, 2005, President Bush said "that he would consider using the military to 'effect a quarantine' in the event of an outbreak of pandemic influenza in the United States," according to a Washington Post report on Oct. 5 by David Brown. 

 

"Responding to a question during a news conference, Bush also suggested that putting National Guard troops under federal, rather than state, control might be one part of a response to the 'catastrophe' of an avian influenza outbreak," Brown wrote.

 

Considering the state of health care in the United States, where the government does little to guarantee universal, equal access to the system to all citizens, such a heavy handed approach seems out of place.

 

Additionally, the industry-dominated regulatory approach to health care in the United States, where the health insurance and pharmaceutical executives and lobbyists move in and out of regulatory bodies with ease and tend to set policy, the pledge to involve the military seems drastic and without involvement from the private sector.

 

Whether or not the U.S. military could respond to a pandemic in time to halt the spread of the disease remains to be seen. The National Guard was ineffective during the Hurricane Katrina clean-up because it was stretched thin by the massive Guard deployments abroad in Iraq and Afghanistan. Similarly, this past spring, when tornadoes ripped through the Midwest, the National Guards of the respective states were unable to provide emergency relief because the troops were patrolling overseas.

 

Yet the U.S. government regularly has local agencies testing response plans. CDC reports its progress to Congress regularly. Yet this report from January 2007 from Julie L. Gerberding, M.D., M.P.H., Director, Centers for Disease Control and Prevention, U.S. Department of Health and Human Services, recognizes "unprecedented" nature of the response plan, but fails to mention any specific difficulties involved in enacting such measures like "public health messages, social isolation measures, movement restriction considerations, treatment of patients, and tracing and prophylaxis of contacts."

 

At least the airline industry responded with honesty when the government asked it to compile databases on potentially sick passengers in the event of an influenza pandemic. The industry resisted saying the task was an unfunded mandate and too large and difficult to carry out. So it further heightens the problems with such a large measure as quaratines. See USA Today.

 

But perhaps the biggest issue here is the lack of international consensus on what are the best measures to utilize to halt the spread of a contagion. Clearly, the Canadian response indicates that these measures don't work, yet the U.S. plan, which is being used as a model for dozens of other countries, according to Director Gerberding’s report to Congress, doesn’t back it up with hard science.

 

The difficulty in studying a pandemic is obvious – it takes a real live virus to track how it moves across a population, and of the pandemics scientists can study, none of them always behave like a flu virus.

 

So while some of the science of detecting the threat of an influenza virus seems standardized, maybe it would behoove the countries to agree on how best to measure the effectiveness of preventative measures like hand washing, surgical measures, and in Western democracies, most importantly, the need for liberty-restricting quarantines.

 

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