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Legal View with Ashleigh Banfield

Possible Mandatory Quarantine for Returning Troops; Five-Year- Old Tested for Ebola; Quarantined Nurse Speaks Out about Treatment; Legal Implications of Quarantine

Aired October 27, 2014 - 12:00   ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

JOHN BERMAN, CNN ANCHOR: Happening (ph) right now and will continue.

MICHAELA PEREIRA, CNN ANCHOR: It certainly will.

BERMAN: "LEGAL VIEW" with Ashleigh Banfield starts right now.

ANNOUNCER: This is CNN breaking news.

ASHLEIGH BANFIELD, CNN ANCHOR: Hello, everyone. I'm Ashleigh Banfield. Welcome to LEGAL VIEW.

And we begin this hour with this breaking news and it comes to us via the Pentagon. CNN learning that the Joint Chiefs of Staff now considering mandatory quarantines for all U.S. troops returning from West Africa. And the fear, you guessed it, Ebola. And our Pentagon correspondent, Barbara Starr, joins me live now with the details.

Perhaps not surprising, and perhaps not as difficult as the other kinds of quarantines we've been talking about, but give me the rundown on what they're doing.

BARBARA STARR, CNN PENTAGON CORRESPONDENT: Hi, Ashleigh.

What we know is the administration is trying to get away from mandatory quarantines. It looks like the U.S. Army and the Pentagon is moving in that direction. Here's what we know. Today an Army two star, Major General Darrell Williams (ph), who headed up for the last 30 days the initial Ebola effort by the U.S. military in West Africa is back in Italy with about a dozen of his team. When they landed, they went into what the Pentagon is calling enhanced monitoring, what the rest of us might think of as quarantine. They are in a separate building on their military base in Vicenza, Italy. You see General Williams there. For the last 30 days, this is a guy who went all over Liberia, saw everything, didn't hide out in his hotel. He has been out and about.

They are now in this building for the next 21 days. They will have their temperature taken twice a day. They are not allowed, at this point, to go home. They are not likely to see their families for 21 days. None of them have symptoms, we are told. They are a symptomatic for Ebola. But the Army, the Pentagon now, doing this out of an abundance of caution.

But it doesn't stop there, Ashleigh. Several dozen more troops expected to land back in Italy later today. And we are getting into a period of a constant rotation of troops going in and coming back out.

So, what is on the table? Well, Defense Secretary Chuck Hagel has to decide whether or not he wants to institute mandatory quarantine, 21 day monitoring behind closed doors for all military personnel coming back.

There's a couple of issues here. Countries like Italy, where these troops are going back, Spain and German, where other troops are going back to, those nations very sensitive about it. They have a lot of concerns. But, look, U.S. military families obviously very worried. And at the end of the day, it could total 4,000 U.S. troops going to West Africa and the decision has to be made, do they all go back into a mandatory quarantine.

Ashleigh.

BANFIELD: Interesting.

All right, Barbara Starr live for us at the Pentagon with this breaking news. Thank you for that.

And we're, of course, finding out a whole lot more about developments today in the Ebola front. We could actually find out anytime now whether that disease has struck a five-year-old boy in New York. The child was rushed to New York's Bellevue Hospital last night. The symptoms were alarming. The travel history, yes, it included the Ebola ravaged west Africa nation of Guinea. Our senior medical correspondent Elizabeth Cohen joins me now live with the latest.

I had so many questions when I heard about a five-year-old.

ELIZABETH COHEN, CNN SENIOR MEDICAL CORRESPONDENT: I know. I know.

BANFIELD: For instance, you cannot just put a five-year-old in a tent alone.

COHEN: He's with his mom.

BANFIELD: But how is she safe?

COHEN: Well, it's -- you know, it's unclear what precautions would need to be taken because she's already been exposed to him. So it will be -- we don't know exactly how they're protecting them from each other, but I imagine that they are treating him, you know, as if he has Ebola while they test him because they don't know if he has Ebola. You know, we need to remember, yes, he was in Guinea, but the question is, was he exposed to someone with Ebola. And we need to remember, I mean, your child's had a 103 degree temperatures before. My child's had 103 degree temperature before. This could be a sign of a whole bunch of things.

BANFIELD: Could be -

COHEN: Maybe it's Ebola, but maybe it's not.

BANFIELD: And I really don't understand, and I'm sure a lot of people don't understand, including the medical community, but for children, are they vastly more susceptible to the lisality (ph) of Ebola than the adults that have actually shown great success in their treatment in the United States?

COHEN: Right, this will be an interesting test because I think what we've learned is that whatever we know about children in Africa will not necessarily apply here because, you know, in Africa, there's been like a 70 percent mortally rate. Well, in the United States we've had, I think, seven people with Ebola and all -

BANFIELD: One death.

COHEN: Only one death.

BANFIELD: Right.

COHEN: So that's a pretty good -

BANFIELD: But not a good sampling, unfortunately, to even make the example (ph).

COHEN: No, it's not a good sampling at all.

BANFIELD: Yes.

COHEN: That's a very small end (ph). That's a very small number.

BANFIELD: Sure. Yes.

COHEN: But I think what we've learned is that how you treat Ebola matters. That it's not necessarily deadly.

BANFIELD: And the other issue with a five-year-old is that, I mean, we all know that five-year-olds are like petri dishes.

COHEN: Right.

BANFIELD: And wherever that child has been in the home, there is without doubt some kind of mark that's been left, some kind of bodily fluid somewhere, the saliva, the cups, the saucers, the table surfaces, everything.

COHEN: Right. I think what -- if they do, and that's a big if, if they do get a positive Ebola test from this, they're going to have to - you know, obviously, they're going to really be sure to clean, clean, clean. You know, you wonder, where was this child besides home? Did the child go straight from Guinea to home to the hospital? Were there places in between? So there will be a lot of questions asked, you know, once this child is - we figure out what he has.

BANFIELD: So I'm sure that - I'm sure that you knew - I didn't mean to cut you off. I'm sorry, Elizabeth.

COHEN: That's OK.

BANFIELD: But I'm sure you knew that Mayor de Blasio here in New York City held a - sort of an impromptu news conference just a short time ago and he stated that the mother of this five-year-old is being treated in a like manner, I'm assuming similar kinds of quarantine measures, that she shows no symptoms, she shows no signs. But at the same time, I couldn't get over, being a mom myself, knowing when there is a child - when you have a child that age that's sick, if you tent up in one of those space suits, that's going to be terrifying. That child needs to be comforted skin to skin almost.

COHEN: Well, often- well, often the patient isn't the one in the suit. If you - you remember there was some video from Nina Pham when she was treated in Dallas and it was actually the caretakers, it was the doctors and nurses, who were in suits, not the patient. So it is possible that this little boy and the mother are not in suits, but that everyone that comes in contact with them is in a suit.

BANFIELD: So I've got some news coming in just as your talking that I just want to relay and maybe get your feeling on what I'm hearing. I'm not sure if it's significant or not but with every - with so little that we know -

COHEN: Right.

BANFIELD: So this family of the five-year-old apparently just go into JFK Saturday night this past weekend at 9:00 p.m. and apparently they had spent an entire month in Guinea. So plenty of room for exposure in a country of three that is what - I mean it's right up there with all three of those really severe -

COHEN: Right, right, right.

BANFIELD: And that his latest temperature is 102.

COHEN: Right. So he had plenty of time to be exposed to Ebola. He also had plenty of time to be exposed to Malaria. He also had plenty of time to be exposed to other things, like typhoid fever. You know, we don't want to say that this is Ebola because we just don't know. A fever can be a sign of so many different things. And that's why you have to test.

BANFIELD: Oh, I just keep thinking about that little child -

COHEN: Oh, it's just awful.

BANFIELD: And being in a circumstance and what the mother is going through as well, if they're trying to separate her with any kind of barrier, be it clothing, anything, how difficult that would be for a 5-year-old.

COHEN: Right. And how scared they must be. (INAUDIBLE).

BANFIELD: I mean my child gets a bleeding nose and that they're in bed all night, you know, right next to me.

COHEN: Right. Right.

BANFIELD: It's just - COHEN: Right, it's just - it's just awful. And we just - we pray for

this family and we pray it's not Ebola.

BANFIELD: Do we ever. And keep us updated. The news keeps dripping in really quickly, so stick around, don't go too far, if you would, Elizabeth Cohen, just right on the leading edge of these stories for us.

The other thing is that the nurse who was absolutely furious over a forced quarantine in New Jersey, all Ebola based, well, all of a sudden now she's not so forced in quarantine any more, she's being discharged. Yes. Out. Gone. Her attorney is going to join me live here in studio with the very latest after this break.

(COMMERCIAL BREAK)

BANFIELD: A nurse from Maine who claimed that being forced into quarantine in New Jersey violated her basic human rights is now headed home. Kaci Hickox landed in Newark on Friday after weeks of treating Ebola patients in West Africa. Well, airport health screeners determined that she had a fever, though that seems to have been a faulty reading, and off she went to an isolation tent at University Hospital. Two Ebola tests were negative and at the hospital her temperature never rose above anything but normal. That's her temperature.

Her frustration level was something completely different and it led to a very public back and forth with the New Jersey governor, Chris Christie. And this morning it seems that the governor backed down. The New Jersey Health Department announced that Ms. Hickox is free to go but not just anywhere. She'll apparently be flown by charter plane to her home - her home state, which will then decide whether she'll been quarantined or monitored or neither. Yesterday she spoke by phone exclusively with my CNN colleague, Candy Crowley, and here's a little bit of what she had to say to Candy.

(BEGIN VIDEO CLIP)

KACI HICKOX, NURSE QUARANTINED IN NEW JERSEY (voice-over): I spent a month in Sierra Leone and when I arrived at the airport in Newark, I, of course, presented my paperwork to the immigration official and told him that I had been in Sierra Leone. So I verbally declared it myself, as well as writing it in the documentation.

And he was very (INAUDIBLE) and said, OK, well, they'll have a couple of questions. (INAUDIBLE) there were many people that asked me questions. No one seems to be leading or coordinating the effort. A lot of the questions were repetitive. And as an epidemiologist I was surprised that, you know, I saw people writing in the margins of their paperwork, which just shows the, obviously, they weren't prepared to really capture all the information they thought they needed.

They tested my blood and, as you know, it's negative. (INAUDIBLE) also confirmed that it was negative. And I know that there have been reports of me having a fever in the airport, but I truly believe that it was an instrument error. They were using the forehead scanner and I was obviously distressed and a bit upset and so my cheeks were flushed and I think there had been some evidence that that machine is not very accurate in these kind of situations. So when I arrived in the isolation unit, they took my temperature orally and it was completely normal.

You know, the first thing I would say to Governor Christie is that I wish that he would be more careful about his statements related to my medical condition. I am not, as he said, quote/unquote, "obviously ill." I am completely healthy and with no symptoms. And if he knew anything about Ebola, he would know that a symptomatic people are not infectious.

I understand that people feel like they have a risk and I think we can have a conversation about what further measures might look like. But I think this is an extreme that is really unacceptable and I feel like my basic human rights have been violated. And I hope that he will also consider me.

(END VIDEO CLIP)

BANFIELD: Well, clearly New Jersey officials have now considered Kaci Hickox. But she did have a plan b if they refused to lift that quarantine and Steve Hyman is part of that plan b, Kaci's lawyer, and he's here live with me.

So, you were ready to go to bat. You were going to take this to court.

STEVEN HYMAN, ATTORNEY FOR KACI HICKOX: Oh, yes.

BANFIELD: What was the basis that -- what were you looking for, a mere hearing or much beyond that?

HYMAN: No, she should be released. The issue is that she is being kept in detention -- call it what you will, isolation, and it's against her will. There is no medical reason for it. There is no reason, health reason, for her to be kept in isolation. And we were prepared to go to court to file a habitus and get her released. And the case law --

BANFIELD: So filing the habitus is one thing, but you know full well, as a lawyer, that there is vast discretion given to public health officials when there is concern. And since there are so many unknowns about Ebola, doesn't that have merit on its own?

HYMAN: There is no health care professional that I have heard or seen that has said in any way that Kaci Hickox is a threat to Americans in here in the United States.

BANFIELD: So those two health professionals, those nurses in Dallas who contracted Ebola, before they began to show the symptoms, the same was said about them, they do not pose a threat, they do not need to go into quarantine.

HYMAN: That is correct.

BANFIELD: And lo and behold, the domino effect.

HYMAN: Well, it was a domino effect is they were sick, but they haven't infected anybody else.

BANFIELD: And thank God for that.

HYMAN: Well, but it's because of how the disease, as I understand it. Look, this is not -- I'm not a doctor, I'm a lawyer. I look at what are the basic civil rights and human rights of individuals, as well as their medical conditions as it relates to that. She -- these individuals who contracted it contracted and exhibit symptoms. If a symptom is exhibited, they then go to a hospital and get treated, as we saw in Dallas. And it's unfortunate that they had any contact. But Kaci has had no symptoms. She is not a threat or danger to anybody.

BANFIELD: Again, I'm not a doctor and I'm not a lawyer, but I am a journalist and I heard you say the words that I think are key in this whole discussion across America, "as I understand it," because the truth is, lawyers, doctors, public health officials, even the president, nobody fully understands exactly how you get sick. Not perfectly.

HYMAN: That's not - that's not entirely true. People understand the nature of the disease. You could ask Kaci and she can explain it to you in detail having dealt with it.

BANFIELD: Sure. Then nurses who wear full protection get sick and die.

HYMAN: No, they didn't get - they didn't have full protection is what I understand it. They were exposed because they didn't know how to deal with it.

BANFIELD: But isn't it fair to suggest for -- I'm just playing the devil's advocate here.

HYMAN: Oh, please.

BANFIELD: You're delightful. But the truth is, the governor of New Jersey did not know exactly what Kaci was wearing for those weeks that she was treating people who were dying of this disease.

HYMAN: But she is not a medical threat and we're prepared to go to a hearing and have doctors testify and epidemiologist testify that she is not a threat and there is no basis to keep her.

BANFIELD: Today.

HYMAN: But that's the only way to do it.

BANFIELD: Do you agree that there is a potential - you'll have to be honest with me here. Do you agree there could be a potential that Kaci could get sick within the 21-day period, just like so many others before her?

HYMAN: Well, I don't know about so many others, but -

BANFIELD: There have been plenty of health care officials - health care workers who have been sick.

HYMAN: There is - there is a possibility, but that -

BANFIELD: There is a possibility.

HYMAN: But -

BANFIELD: And isn't that what the governor was worried about -

HYMAN: No.

BANFIELD: That possibility?

HYMAN: No.

BANFIELD: Isn't that his responsibility, that possibility?

HYMAN: No, the - no, the governor was worried that - I can't speak for what the governor is. His quarantine, as we see from CDC and from the NIH, they are saying, this is the wrong policy. And one thing we also have to take into account is that Kaci did a noble and heroic thing and we're treating her now like a prisoner. That is - that is unacceptable.

BANFIELD: Well, I think it stinks (ph) the way they put her away. I do -- I agree with you on the conditions under which she was held. It was - it looked like a jail, no shower and no television, no reading materials. I was crazy. In that respect, I think (INAUDIBLE).

HYMAN: Well, anything - any place you put her against her will when she is not ill because you fear her is wrong.

BANFIELD: I think there's room -- I think there's room to disagree at this early stage, but I have to cut it there.

HYMAN: That's good.

BANFIELD: Thank you for coming in. I appreciate it. Steve Hyman, good to see you. Thank you.

So we're also covering a lot of different angles on this. The quarantine rules have caused a lot of fear and confusion, also frustration, and now certainly the legal issues, you just heard part of them. Next, an attorney who helped one state actually write the quarantine laws to make them tougher. His take, next.

(COMMERCIAL BREAK)

BANFIELD: White House officials are urging states to enact Ebola quarantine policies based on science, not based on fear. And they're expressing concerns about medical workers being deterred from going to Ebola hot zones to help out if they know that they're going to face three weeks of confinement when they get back stateside. And CDC Director Tom Freiden has said repeatedly that the Ebola crisis will not stop unless, well, people like those people go over and help to beat it.

There has been a lot of back and forth about whether to quarantine health care workers who are returning from Ebola ravaged African countries or rely on their ability to self-monitor their own symptoms. And it is a very tough call. This morning CNN's Chris Cuomo talked with Ebola survivor Dr. Rick Sacra about what he thinks is the best approach to protecting the public without deterring the volunteers from wanting to go overseas to help fight Ebola in the first place.

(BEGIN VIDEO CLIP)

CHRIS CUOMO, ANCHOR, CNN'S "NEW DAY": You know that there are questions about this self-monitoring. You know, can we trust people to do it? Will they really be that aware? You know, maybe we should take a further step because you don't know when you're getting it, 21 days, 40 days. There seems to be so many variables. Is there a middle ground?

DR. RICK SACRA, CAUGHT EBOLA VIRUS IN LIBERIA: Yes, please don't say 40 days. There's no data to suggest a 40-day window.

CUOMO: But you know why I say it, doc?

SACRA: Because -

CUOMO: You know that somebody came out with a study and said that 21 days is from the 1970s and now it could be even longer than that. That's where the number comes from.

SACRA: Well, but that was based on mathematical modelling and not on clinical data.

CUOMO: OK.

SACRA: They don't have cases that came out 40 days later. It was a mathematical model that they were using on their computer.

CUOMO: OK. So -

(END VIDEO CLIP)

BANFIELD: So here to discuss the legal implications of being quarantined and just what the governor can and can't do, CNN's legal analyst Paul Callan, along with attorney Steven Gravely, who actually helped write Virginia's quarantine laws to make it easier for the states to implement these stringent public health measures in the wake of the SARS outbreak in 2002.

So I'd like to ask you about that, Steve Gravely, about what you think the law says right now regarding those health care workers who return from these Ebola ravaged countries, who have been point contact with dying patients and themselves might pose a risk - might being the key word here. Where are we with the law and is it good enough?

STEVEN GRAVELY, ATTORNEY, WROTE VIRGINIA'S QUARANTINE LAWS: Well, Ashleigh, it's nice to be with you today.

One of the challenges with this particular outbreak is that the laws are very different. Every state has its own quarantine laws, its own isolation laws. And the states under the Constitution have the authority to enforce public health. So what you actually have is a patchwork of laws that vary from state to state. And so when we - we don't - there's not a consistent, single federal law that governs here.

BANFIELD: But aren't there the consistent rules of the Constitution that start tangling up what the states have put in place?

GRAVELY: Well, actually, under the Constitution, the states have the authority over public health. Now, the federal government certainly has authority for international airports and sea - you know, shipping ports and things like that. And the CDC has quarantine stations in those airports. But this is a jurisdiction turf battle, unfortunately, between the federal and the state government. And generally the state government would be the one responsible for enforcing quarantine laws or isolation.

And there's a difference, as you probably know. We quarantine folks who have been exposed to a communicable disease, but who are not yet infected. We isolate folks who are actually infected. And so the goal here, you know, quarantine's been around for hundreds and hundreds of years. The goal is to try to keep people who have been exposed, who may or may not be sick, from infecting other people. And so there's a sound basis for quarantine medically, but there's a lot of debate about whether -- what New York and New Jersey did was really appropriate.

BANFIELD: So I want to bring in Paul Callan into this conversation as well because he has lots to say. He's done a lot of reading on this notion of the depravation of liberty versus the wide latitude that federal, state, even civic officials are given when it comes to the potential for protecting others from this kind of problem. But nobody really knows where that trigger is. Nobody really knows when the state official or the local official gets all of that power. How thick do you got to be? How threatening do you got to be? What is it?

PAUL CALLAN, CNN LEGAL ANALYST: Well, you know, I think it's an example of the judges and the lawyers being careful to leave certain things to the doctors and the public health officials. This is a - and sort of fighting an epidemic and a communicable disease and infectious disease is a moving target. The science may change as you go along. So the judges aren't going to jump in right away and say, oh, this is ridiculous making this poor nurse stay in quarantine for 21 days because it may turn out that it was warranted under the circumstances.

Now, what's the trigger point? You've got to go back really -- they don't use it very much, quarantine. You got to go back really to World War II the last time it's been, you know, effectively used in the United States. And we've become a lot more due process oriented. In other words, saying the courts have a right to look at every situation when an American citizen gets locked up.

But in this case, if a local court or even if you got it into federal court looked at it, they'd be saying, well, is it - is there any medical reasonableness to what's going on and how do you weigh that against the threat of the disease? Now here we're told that Ebola is 50 percent to 70 percent fatal if you get it. So that's a huge threat of death if that disease spreads, as against 21 days in quarantine. That's a pretty minor liberty.

BANFIELD: It's awful for the health care worker who was -

CALLAN: Yes.

BANFIELD: As she said, deprived of her liberty, because effectively she was. But, Steve Gravely, there is that notion, when Paul just threw out that stat, it's true, it's 70 percent lethal in Africa. So far we can't really give you the statistics because it's so new in this country. But it's real, real lethal. And shouldn't the trigger point just be - and again devil's advocate here -- why risk it?

GRAVELY: Yes, I think that's a great question. So, you know, with pandemic influenza or with SARS, you know, that disease -- those diseases are much more easily transmittable than we think Ebola is. But you're right, Ebola is often fatal and so that does change the dynamic. But I think we have to go back to the science, and that is that based on what we know today -- and I affirmed this this morning with some colleagues in public health -- that unless you have a fever with Ebola, you are not infectious. And once you have a fever, you are. And so I think that's an important distinction that we can't lose sight of.