Written by Professor Scott Burris, Temple University Beasley School of Law

For decades, public health experts have been warning of the possibility of a viral outbreak that would rapidly spread across the globe, causing significant morbidity and mortality.  To prepare, and with the experience of diseases like SARS, the World Health Organization and national governments have focused on early detection and containment strategies and the necessary capacity to carry them out.  The result has been considerable attention to surveillance and containment of emerging viruses through traditional public health means – contract tracing and quarantine isolation, travel regulations, and medical care carried out with proper infection control.  This approach has worked reasonably well over the last two decades, and the investment in capacity may have paid off in the early detection of covid19.

Unfortunately, the nature of covid19 and its appearance in a major hub of Chinese and global commerce has apparently led to its breakout as a pandemic disease. The world is now possibly confronted with something it has not seen for over a century, a readily transmissible disease like influenza with a mortality rate that might be at least an order of magnitude higher than the usual seasonal flu.  In this light, we see that the traditional control measures that have been relied on to protect us are really “Phase I” responses. With the breakout, we are now in a “Phase II” epidemic response, in which the public health response centers on two key activities:  encouraging and facilitating social distancing to minimize new infections, and health care/infection control to prevent onward transmission and reduce mortality among those who get the disease.

Both promoting social distance and providing safe health care in a moment of surging demand pose significant, and largely unexamined practical, legal, and ethical questions.  Social distancing and self-quarantine measures create an economic burden that will fall heaviest on those with the least resources to bear it.  A surge in demand for health care will lead to shortages of basic equipment, elevated risk to health care workers, and the necessity of triage at every stage. 

Our healthcare system will face severe burdens under all plausible scenarios. Most hospitals are already straining to deal with the usual patient flow, including people with complications from seasonal influenza. Hospitals will need immediate funding and adequate resources for enhanced surge capacity in order to handle the front-line response. Particular attention and funding must also be directed to primary care facilities and community health centers, especially those that are currently under-resourced even under normal circumstances. These front-line sites of healthcare provision need to act as gatekeepers to prevent the overburdening of tertiary hospitals and other acute care facilities and require support to allow them to fulfill this crucial role. 

As public health authorities increasingly call for people to avoid groups and maintain social distance, the burden on people, businesses and institutions with limited resources will become acute. To enable people to cooperate with social distancing and other measures, policymakers must ensure that people are protected from job loss, economic hardship, and undue burden.  If people are asked to avoid public transport or work, policymakers and employers should give them an explicit incentive to stay home, either with payments or by compensation for lost wages.

A successful response to the COVID-19 pandemic must protect the health and human rights of everyone in the society. One of the greatest challenges ahead is to make sure that the burdens of COVID-19, and our response measures, do not fall unfairly on people in society who are vulnerable because of their economic or social status, or that faced with mounting cases, people are turned away from needed care by facilities meant to serve them.

Professor Scott Burris is Professor of Law and Director of the Center for Public Health Law Research at Temple University Beasley School of Law and  Global Scientific Advisory Committee Member of the Aletta Jacobs School of Public Health (University of Groningen)

For more information on COVID-19: https://www.nrc.nl/nieuws/2020/03/07/brieven-a3992974#/handelsblad/2020/03/07/%23210