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Subject Area: Law
Topic: The American Revolution and Constitution

§ 44.: Confinement for infectious and contagious diseases.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 44.

Confinement for infectious and contagious diseases.—

The right of the State, through its proper officer, to place in confinement and to subject to regular medical treatment those who are suffering from some contagious or infectious disease, on account of the danger to which the public would be exposed if they were permitted to go at large, is so free from doubt that it has been rarely questioned.1 The danger to the public health is a sufficient ground for the exercise of police power in restraint of the liberty of such persons. This right is not only recognized in cases where the patient would otherwise suffer from neglect, but also where he would have the proper attention at the hands of his relatives. While humanitarian impulses would prompt such interference for the benefit of the homeless, the power to confine and to subject by force to medical treatment those who are afflicted with a contagious or infectious disease, rests upon the danger to the public, and it can be exercised, even to the extent of transporting to a common hospital or lazaretto those who are properly cared for by friends and relatives, if the public safety should require it.1

But while it may be a legitimate exercise of governmental power to establish hospitals for the care and medical treatment of the poor, whatever may be the character of the disease from which they are suffering, unless their disease is infectious, their attendance at the hospital must be free and voluntary. It would be an unlawful exercise of police power, if government officials should attempt to confine one in a hospital for medical treatment, whose disease did not render him dangerous to the public health. As a matter of course, the movements of a person can be controlled, who is in the delirium of fever, or is temporarily irrational from any other cause; but such restraint is permissible only because his delirium disables him from acting rationally in his own behalf. But if one, in the full possession of his mental faculties, should refuse to accept medical treatment for a disease that is not infectious or contagious, while possibly, in a clear case of beneficial interference in an emergency, no exemplary or substantial damages could be recovered, it would nevertheless be an unlawful violation of the rights of personal liberty to compel him to submit to treatment. The remote or contingent danger to society from the inheritance of the disease by his children would be no ground for interference. The danger must be immediate.

[1]Harrison v. Baltimore, 1 Gill, 264. In this case it was held that it was competent for the health officer to send to the hospital persons on board of an infected vessel who have the infectious disease, and all others on board who may be liable to the disease, if it be necessary, in his opinion, to prevent the spread of the disease. The same conclusion was reached as to the constitutional sanction of the summary detention and disinfection, by order of the State, or other local board of health, of immigrants and others who may be likely to spread contagious and infectious diseases. In re Smith, 84 Hun, 465; Minneapolis, St. P. & S. S. M. Ry. v. Milner, 57 Fed. 276; Compagnie Francaise de Navigation a Vapeur v. State Board of Health, 51 La. Ann. 645.

[1]Recently, a committee of the New York Board of Health, which had been appointed to report on the care and treatment of cases of tuberculosis, recommended that a hospital for the exclusive treatment of consumptives, be established, and urged that legislation be sought, whereby tuberculosis may be treated by the Board of Health as any other contagious disease, and the sufferers from this deadly disease be isolated from the rest of the people. The Board adopted the report of the committee and resolved to take steps to carry the recommendations of the committee. Should the legislature indorse this view of tuberculosis, and empower the boards of health to isolate the victims of this disease, there is no room for questioning the constitutionality of the legislation.