h u m a n r i g h t s e l l e n b o n e p a r t h
A decade before illegal detentions and abusive treatment of foreign and American citizen captives at Guantanamo Bay and Abu Ghraib prison, United States government officials were already engaging in similar practices. In the 1990s, government agencies began to expand the categories of American citizens, legal residents, and would-be immigrants who could be detained and ignored the right to due process. In just two examples, New York closed state psychiatric hospitals and locked up patients in nursing homes without court orders, and the Immigration and Nationalization Service (INS) held hundreds of undocumented children behind barbed wire because there was no one to take responsibility for them. The increasing use and abuse of civil detention – confinement of individuals considered threats to society – has, on occasion, been successfully challenged in the courts, but usually long after the injury has occurred.
Souvannarath v. County of Fresnois one such case.
On May 25, 1999, Catherine Campbell watched her new client, Laotian refugee Hongkham Souvannarath, a middle-aged woman in orange prison garb, hands and feet shackled to her waist, shuffle into the holding cell in the basement of the State Superior Court in Fresno, California. Campbell, a lawyer specializing in prisoners’ rights, had worked with inmates for years, although typically her clients had long arrest records and were doing time for violent crimes. This petite, sickly-looking woman hardly fit the profile.
Through a glass partition, Campbell, using a Laotian translator, began her questioning. How long had Souvannarath been in jail? Almost eleven months. Why was she there? She had tuberculosis. Confused, Campbell restated her question. What had Souvannarath done? Tears trickled down the prisoner’s cheeks. The Health Department claimed she wouldn’t take her medications, she said, but she had been on medication for sixteen months.
Campbell informed her client she would try to get her released that day. It would not be easy. Health Department personnel and a lawyer from the County Counsel’s Office were on hand, armed with an Order of Continuing Detention. When Campbell read the Order, she quickly understood that its provisions for hearings, court orders, and legal representation should have been implemented when Souvannarath was first arrested. In the hearing that afternoon, Campbell assailed the County for false imprisonment. The County’s TB Controller responded that Souvannarath had been properly detained as a public health threat. The two sides finally compromised: the prisoner would be released on home detention if she agreed to wear an electronic ankle monitor to track her movements.
Hongkham Souvannarath’s refugee journey should never have ended in a California jail. Like hundreds of thousands of Southeast Asian refugees, she ledt Laos as a result of the Vietnam War. A mountainous country the size of Oregon, Laos has had the historic misfortune of lying in the path of Asian and Western powers seeking sway over the region. When the French colonial regime in Indochina collapsed at the end of World War II, competing Laotian factions fought for control. In the 1960s, domestic and international conflicts converged as Laos’ long border with Vietnam made it a secondary battleground for the U.S. military.
Raised on a farm in western Laos in the 1950s, Souvannarath left home to learn rudimentary nursing – she had no more than a third grade education – at a U.S. military field hospital. In Vientiane, the national capital, she met her husband, who had once worked with U.S. forces on road construction. There, she began married life in 1974, the same year the Communist Pathet Lao overthrew the Laotian monarchy. When the Communists ordered the citizenry into the streets to shout anti-American slogans, Souvannarath, fearful her family’s associations with the U.S. would come to light, shouted along. Despite her political vulnerability, she made a good life in Vientiane operating small businesses and giving birth to two sons and four daughters.
In the next decade, 350,000 Laotians, mainly Hmong but also lowland Lao like Souvannarath, fled Communist rule, most of them crossing the Mekong River to Thai refugee camps. In 1984, both out of fear and from a sense of maternal responsibility, Souvannarath decided to escape. Two of her daughters were afflicted with Thalassemia A, a debilitating blood disease, which, given the family’s limited resources, would not be treated effectively in Laos. When Souvannarath discovered her husband was unwilling to leave, she proceeded on her own. Living near the Mekong, she submerged a rowboat in the river. One evening, she invited Laotian soldiers stationed nearby to dinner and lulled them to sleep with prodigious amounts of wine. At midnight, she shepherded her children to the river, retrieved the boat, and rowed to an island where the family was picked up and taken to a Thai refugee camp. There, she obtained medical care for her daughters and made useful connections in the Catholic community. Within two years, sponsored by the U.S. Catholic Conference, she managed, along with her husband, who had re-joined her and the children, to leave for the U.S.
The Souvannaraths were first settled in Louisville, Kentucky, in October, 1986, but, desperate for a Southeast Asian community, in less than a year they moved to Columbus, Ohio. A Laotian social worker found them housing and part-time jobs, enrolled the children in school, helped them apply for welfare and health benefits. Souvannarath encouraged her children to adapt; her husband pressed them to observe traditional ways. Marital tensions led to a two-year separation. At one point, Souvannarath was victimized by Asian gang members, who robbed and beat her. She became anxious, was diagnosed as clinically depressed, and became eligible for disability payments. After a visit to California, she decided, despite some family members’ objections, to move the family to Fresno.
California did not turn out to be the paradise Souvannarath anticipated. Her sons, unable to find work, returned to the Midwest. Her four daughters found it hard at first to make friends, as the predominant Southeast Asian group in the community was Hmong, with whom they had no common language except English. Souvannarath and her husband separated for good. While Souvannarath had neither a full-time husband nor sons to help carry the family burden, a serious handicap in her culture, she pushed herself and her children to succeed on the American scene.
By the time Souvannarath settled in Fresno, the city had evolved from a small, agricultural town to California’s sixth largest city – a sprawl of housing developments and malls, a mix of neighborhoods, a nondescript city center. In the late nineteenth century, the railroad, roads and irrigation had turned the barren San Joaquin Valley into a flourishing agricultural region. The first settlers were all immigrants – European and Armenian farmers, Mexican farm workers, Chinese gold miners and railroad workers. The most recent immigrants, Southeast Asian refugees, began arriving in the 1980s, attracted by Fresno’s climate and slow pace, not very different from Vientiane’s or Phnom Penh’s. With land relatively affordable, many refugees, once farmers, purchased small plots on which to grow native herbs and vegetables. Despite the attractions, life was hard. The refugees faced competition for unskilled jobs, especially in recessionary times, from unemployed whites, Latinos, and African-Americans. When survival necessitated going on welfare, they were resented by community members and local bureaucrats for placing a financial burden on the county.
Souvannarath and her daughters got by on welfare and disability payments. The girls continued their schooling, worked part-time, dated. Souvannarath, although she missed her sons, was happy to have found a small Laotian community, Asian foods, a Buddhist center, a boyfriend. She was managing. But when illness struck, her family’s life changed radically.
In the summer of 1997, Souvannarath stopped eating, lost weight, coughed a lot. She went to a community clinic, where she was given a video on how to stop smoking. When her health worsened, she was given a tuberculin skin test, but did not return to the clinic in time to have the patch checked. A sputum test proved negative. Still feeling very ill, she was referred to a hospital. Chest x-rays revealed lesions in the pleura (membranes surrounding the lungs), but these could not be identified as caused by tuberculosis bacilli. When physicians proposed to extract lung tissue for a biopsy, Souvannarath agreed, believing there would be one incision. She was furious afterwards to discover that the surgeons had made five.
The biopsy produced a diagnosis of TB, which, given its location in the pleura, was not considered contagious. The hospital released Souvannarath immediately, without providing her information about her disease. When, the next day, a medical assistant from the Health Department visited the family, a daughter, whose English was poor, understood only that her mother had TB and had to take medications. Souvannarath was put on the standard treatment of four first-line drugs to be taken for six months. Within weeks, she felt better, and like many patients, went into denial. Her logic told her that if she felt well, the problem had passed. Moreover, she had begun to experience side effects from the medications. She did not see why she should keep taking them.
The Health Department had a well-established program of what is called Directly Observed Therapy (DOT). In the public health field, DOT is the recommended way of treating TB patients: by monitoring their ingestion of medicine. For DOT therapy to succeed, there must be rapport between health worker and patient, including a common language; but the Fresno Health Department had only a few Southeast Asian medical assistants, all of them Hmong. Souvannarath began seeing a Hmong medical assistant who claimed to speak good Lao, but his language skill had never been assessed. The alternative – using the Souvannarath daughters to translate – was also problematic. The girls spoke household Lao, insufficient to explain complex medical matters even if they understood them in English. When health workers came to the house, Souvannarath often complained, questioned, evinced distrust. On several occasions, she missed scheduled appointments or refused to take her medication. The Health Department typed her as noncompliant. Yet she did take medication, if somewhat erratically, and seemed to be responding. By March, her chest x-ray was clear.
At the end of February, however, lab results from Souvannarath’s biopsy revealed that her tuberculosis was multi-drug resistant (MDR), with marked resistance to three of the first-line drugs she was taking and negligible resistance to the fourth. Multi-drug resistant tuberculosis first appeared in the U.S. in the mid-1980s, a time of resurgence of tuberculosis after years of decline, due to AIDS, homelessness, and immigration. Although such resistant cases remained below five percent nationally, there were pockets, such as New York City, where drug resistance was found in fifteen percent of tuberculosis cases. New York responded to its tuberculosis epidemic by quadrupling its staff of workers in direct occupational therapy, reconfiguring hospital rooms to prevent contagion, and establishing isolation wards where they detained noncompliant patients. Ultimately, the New York Department of Health spent a billion dollars on the program. California, which also experienced a major outbreak of TB, rewrote its Health and Safety Code to provide local health officials with greater authority, but did nothing to establish hospital or isolation wards.
When tuberculosis is resistant to first-line drugs, it requires stronger medications. The Fresno County Health Department, having seen other cases of MDRTB in the community, chose to attack Souvannarath’s disease with fairly toxic second-line drugs. In her case, it was a debatable decision. Two former TB Controllers believed Souvannarath, who seemed close to being cured, should have remained on first-line drugs (Isoniazid, to which she was only mildly resistant, and Pyrazinamide, a new drug for her, to which she evinced no resistance). But the Health Department, fearing an epidemic, took no chances. In an interview, its Director compared MDRTB patients to criminals: “These people – it’s like a death sentence. No different from someone with a gun pointed at your head, except with a gun you can see if the chamber is loaded.”
A century ago, public health was seen as the prescription for healthy communities. After World War II, however, responsibility for health care in the United States shifted relentlessly from the public to the private sector, so that today, the latter accounts for ninety-nine percent of total health-related expenditures. In the 1990s, Fresno County public health agencies, like public health systems across America, experienced a crisis of declining resources and lowered prestige. In the hope that services provided by a private hospital would prove more cost-effective, the County closed its teaching hospital and a number of community clinics.
In 1993, Betty Tarr, a nurse practitioner, became Manager of Fresno County’s Communicable Disease Division, which was responsible for tracking diseases such as HIV and tuberculosis. She set out to make the Chest Clinic, which treated TB cases, run more efficiently. She believed that the half-time Tuberculosis Controller, Dr. Tom Cole, was too lenient, especially with noncompliant patients, whom he occasionally detained but then released after a few days. When an opportunity arose to hire a new physician, Tarr chose Dr. Michael Reynolds. A pleasant, Marcus Welby-looking obstetrician and gynecologist employed by a county clinic that was about to close, Reynolds inquired about employment elsewhere. For Tarr, his application was opportune, a county transfer for a job that had become very hard to fill.
Dr. Reynolds had good reasons for wanting to continue with Fresno County. The California Medical Board had put him on probation for alcoholism and had placed him in the Physicians’ Diversion Program, which required he have a workplace monitor. He had lost his hospital privileges. By all measures, he was a poor prospect for private sector employment.
Other aspects of Dr. Reynolds’ past should have set off alarms, but did not. On his personnel form, he admitted a cocaine conviction. He failed to mention that he had recently been sued for medical fraud. Nor did he disclose that, beginning in 1984, he had been charged with eight cases of medical malpractice and fired from two hospital positions. At his job interview, Dr. Reynolds apparently discussed his alcohol problem and made a convincing case for a new start. Tarr set out to ease Dr. Reynolds into the TB Controller’s job. First, she assigned him to shadow Dr. Cole in the Chest Clinic; then had him see patients on the days Dr. Cole was not present. Dr. Cole protested that Dr. Reynolds could not read chest x-rays and was not competent to work as a pulmonary physician. When Dr. Cole threatened to go public with his concerns, the Health Department senior management terminated him. Dr. Reynolds took over.
Dr. Reynolds had been on the job a month when he first saw Souvannarath at the Chest Clinic. In response to her MDRTB diagnosis, he prescribed powerful second-line drugs – Ethionamide, Ofloxacin, and Amikacin – which were administered through an intravenous line. He said nothing to her about possible side effects. Soon, Souvannarath experienced wheezing, ringing in her ears, loss of appetite, fatigue, ankle pain. After a month, her side effects, according to her medical record, also included “coughing, joint pain, noise in throat, headaches and swollen lips.” Dr. Reynolds then put her on Clofazimine, a leprosy drug not approved by the FDA as effective with tuberculosis, which caused in her nausea, dizziness and considerable psychic pain because it turned her skin dark, something highly undesirable in her culture.
Several months later, in mid-June, 1998, Souvannarath, despairing of her treatment, decided to move to the Midwest to be with her son, and to seek medical attention there. She returned to the Chest Clinic, where her intravenous line wasremoved, and was given two weeks of medication to tide her over. The Clinic staff sent a referral on her to the Health Department in Columbus, Ohio, which, a week later, informed the Chest Clinic that Souvannarath’s son was not expecting his mother. A health worker was dispatched to Souvannarath’s home in Fresno, where a daughter told him she didn’t know where her mother was staying. A week later, Souvannarath’s boyfriend told another health worker that she had moved to Modesto and would go to the Midwest from there. The worker left a phone message saying that if Souvannarath did not come in to the Clinic, she would be arrested. She did not appear.
On July 23, a health worker made another home visit and “found the client there eating lunch with the entire family. Client denied being ill and refused to resume treatment.” Souvannarath insisted that her son had been planning to come for her, but that his work schedule had changed and he could not get away until August. Asked why she had hidden and told her family to lie about her whereabouts, she replied honestly – she felt shame at being caught in a lie and fear of being arrested.
Dr. Reynolds promptly issued an Order of Examination – a legal order that, if disobeyed, results in a misdemeanor charge – requiring Souvannarath to appear at the Chest Clinic. The Order was delivered by a medical investigator and a Hmong interpreter, who was, it seems, unable to convey to Souvannarath the seriousness of her situation. When she failed to show up at the appointed time specified in the Order of Examination, Dr. Reynolds wrote up an Order of Isolation and Quarantine to have her confined in the Fresno County Jail.
July 30th, 1998, the day of Souvannarath’s arrest, was a fiasco. The medical investigator, who had no training in civil detention procedures, returned to her apartment with the Order of Isolation and Quarantine, accompanied by two police officers, and with no interpreter. Highly agitated, Souvannarath tried to explain her circumstances to the police. She swore later the investigator lied and told her she was being taken to a hospital. When she asked to change her clothes, she was escorted to her bedroom under gunpoint and was certain that she was going to be raped. In the end, however, she and her daughters left the house voluntarily and rode in the investigator’s van, followed by the police.
When Souvannarath realized she had been delivered to jail and not a hospital, she began screaming. A Hmong police officer tried to calm her. A jail administrator promised she would be in jail at most a few days. She was given a mental health evaluation, which consisted of a few questions asked by the Hmong officer. According to her jail record, she threatened to kill herself. She was strip-searched and assigned to a safety cell, described in a judicial opinion in this way:
For the next two days, Souvannarath was regularly evaluated by jail personnel who did not speak her language. A Lao speaker might have saved her from the safety cell as she later claimed her remarks about killing herself were, in fact, expressions of fear of being killed.
After two days, Souvannarath was moved to the Infirmary, which resembled the rest of the jail, except that she was confined to her cell and lived twenty-four hours a day with the physically and mentally ill. Attached to an IV, she was forced to clean up after one cell-mate who was incontinent, and was attacked by another who suffered from a terrible rash and threw scabs at her. Each week, she had one thing to look forward to – visits with her children – but even these were frustrating as she and the girls tried to figure out why other inmates were getting court appointments and being released, while she was ignored.
Souvannarath began to show the effects of incarceration. She dropped from a hundred fourteen to a hundred three pounds because she could not eat the unaccustomed food. She kept trying to fathom the logic of her situation. If she had to be on intravenous medication, she thought, it meant she was sick. If she was sick, why, then, was she in jail rather than a hospital? When, during a check-up, she asked Dr. Reynolds through an interpreter that very question, he told her that if she went home she would infect her children. Souvannarath caught the flaw in his argument, pointing out there were healthy people in jail whom she could infect. He responded by threatening to move her to another facility far from her family.
After Souvannarath was arrested, her daughters closed the blinds to protect themselves from the prying community, and stopped socializing, to avoid answering questions about their mother. They survived on packaged noodles and junk food. Although they could cover their own expenses with welfare payments, they had high phone bills. because their mother was allowed to place only collect calls from jail, and she phoned several times a day. The daughters sought help from their brothers, from Lao community leaders, from their social worker. Every person they contacted went to the Chest Clinic for information. There, they were told Souvannarath was legally detained and could not be released, because she was a public health threat.
After six months in the Infirmary, Souvannarath was transferred to a “pod” where the rest of the female jail population was housed. Although she now lived with convicted felons, she was delighted to be able to leave her cell for the day room and make some friends. No longer receiving intravenous therapy, she continued second-line drugs orally, always suffering debilitating side effects. On March 29, 1999, after completing eight months of chemotherapy in jail, she had another check-up at the Chest Clinic. A jail nurse had told her she would be going home in August; but Dr. Reynolds informed her that she would remain in jail for the full duration of her treatment – twenty-four months. Furious, Souvannarath resumed sending letters, written for her by other inmates, to the Health Department requesting her release.
In early May, through an Ohio lawyer contacted by her sons, the Fresno legal aid community was alerted to Souvannarath’s plight. Soon afterward, a Chest Clinic nurse visited her in jail and handed her an Order of Continuing Detention from Dr. Reynolds, in which he cited the California Health and Safety Code as his authority to detain her. He informed her of her right to request release and to be represented by counsel. He noted that it was his own obligation to obtain court orders to keep her in jail. He made no suggestion that he had neglected this duty for more than ten months.
Once attorney Catherine Campbell had arranged Souvannarath’s release from jail, at the end of May, 1999, Campbell discovered that Fresno County had been incarcerating noncompliant tuberculosis patients for years, although none for as long as her client. The detainees in the most recent cases were all African-American; one patient was most likely still in jail. Campbell quickly filed a writ of mandamus in State Superior Court asking that the Health Department be ordered to cease using the jail for civil detention and to comply with the due process provisions of the California Health and Safety Code.
At the writ hearing in August, the County defendants’ own testimony made Campbell’s case for her. The Sheriff admitted that Souvannarath, a civil detainee, should not have been housed with the criminal population. Betty Tarr, Manager of the Communicable Disease Division, denying any responsibility for Souvannarath’s legal rights, protested, “We’re not attorneys, we’re just medical providers.” When asked whether the County would continue to use the jail for detention, she replied, after much obfuscation, “It’s one of the options.” Finally, Dr. David Hadden, the County Health Officer, pled ignorance of detention orders he himself had signed, then blamed rights violations on others.
Superior Court Judge Donald Black, in a decision, issued on January 19, 2000, ordered the County to “immediately and permanently cease the housing of persons detained pursuant to Health and Safety Code Sections 121350 et seq. in correctional facilities, including, without limitation, the Fresno County Jail, unless such persons have been tried and convicted of a crime.” Campbell and Souvannarath had won their first victory; but there was little opportunity to celebrate. On January 22, Souvannarath’s youngest son was killed in a car accident. Souvannarath was distraught. A believer in the spirit world, she knew what she had before only suspected: she had been cursed by evil spirits, and her soul had been wrested from her in jail.
Even before the first case was decided, Campbell had filed a second lawsuit, this time in Federal Court, in which the Souvannarath family sued the County of Fresno, eight officials from the Department of Community Health, and two from the Sheriff’s Department. The complaint contained fifteen causes of action, including, inter alia, denial of equal protection and right to counsel, false arrest, civil battery, and municipal failure to discharge statutory duties. The pre-trial discovery process took ten months. County officials from low-level nurses to top-level Health Officers testified that they had no responsibility for legal matters, only medical ones. Even in that regard, they abdicated, admitting their only medical plan for Souvannarath was to keep her on medication in jail, leaving her side effects, for the most part, untreated.
Dr. Reynolds’ deposition was the most revealing of medical indifference. He conceded he never tested Souvannarath’s boyfriend for TB or determined if Souvannarath was infectious before sending her to jail. He never consulted her mental health worker during her treatment or considered home detention as an alternative to incarceration. He kept Souvannarath behind bars because she was “incapable of making a paradigm shift” and becoming compliant. When asked whether he would have kept a noncompliant Souvannarath in detention for the rest of her life, he replied, “That has been done.”
At the end of the discovery process, Campbell considered whom to hold accountable for the injuries inflicted on her clients. While the defendants all denied responsibility, each one appeared culpable of something and, to Campbell’s mind, sounded that way. As she finished up taking the defendants’ depositions, she prepared the Souvannarath family members for theirs, emphasizing proper comportment – conservative dress, willingness to cooperate. The County’s attorney who deposed Souvannarath and her daughters found them sincere and likable. At the close of her testimony, Souvannarath said to the County’s legal team, “I thank you for your time and wish that you have your health.” Ironically, the deposition had been a welcome experience – the first time anyone from the County had appeared at all interested in what she had to say.
If the defendants’ depositions made Campbell eager for a trial, the Souvannaraths’ depositions made the County eager to settle. In early March, 2001, it proposed an Early Neutral Evaluation by an independent mediator. Campbell had to decide whether or not to go to trial. She observed in an interview, “The family was really poor, living on welfare. A jury trial would take a long time. Even though the family would be good on the stand, there was a certain amount of anti-Asian feeling in the community. It made sense to try to settle.”
The mediation took place at a large law firm, the plaintiffs and their attorneys in one conference room, defendants and their attorneys in another. The plaintiff asked for two million dollars: one million to Souvannarath for unnecessary, possibly permanently damaging, treatment and unlawful incarceration; one million to the children, for “emotional loss, physical loss, and constant trauma.” Along with a written apology, Campbell demanded that “Souvannarath be allowed to return to the Fresno County Jail with her attorneys, her children, and her Buddhist monk to perform a ceremony that will return her spirit to her body.”
Campbell thought the case would settle well; but her optimism evaporated when the mediator delivered the County’s first offer: agreement to the soul-catching ceremony, an apology, and $250,000. Although she recognized the offer as an opening gambit, Campbell was nevertheless prepared to walk out. In a friendly way, the mediator told her: “You are not to leave this room until I say so.” He moved between the two conference rooms, The defendants went up a hundred thousand dollars. The plaintiffs came down the same amount. The Souvannaraths sat stoically through it all. At $1.2 million, Campbell refused to budge. The mediator knew it was a final counter-offer, and the County accepted. The family’s reaction was joyful, but not exuberant. It had been a wearing day, after an almost three-year, life-sapping struggle.
On April 22, 2001, Souvannarath and her daughters, dressed in traditional costume, bearing silver bowls of flowers, and surrounded by Campbell, the Sheriff, and the legal team of Fresno County, knelt and chanted Buddhist prayers at the steps of the County Jail. Buddhist monks in saffron robes and nuns in white were led by a shaman to the safety cell in the infirmary and pod. Carrying a butterfly net and a can of Pepsi, the shaman sprinkled rosewater and called for Souvannarath’s spirit to return to her body. After the soul-catching ceremony, the guests attended another traditional Lao ceremony, this one at Souvannarath’s apartment. Contented and at peace, Souvannarath tied cotton threads around their wrists to bind the kwan, the thirty-two spirits of the body, to the possessor with wishes for health and prosperity.
But the legal battle was not yet over. Before the settlement of the federal suit, Fresno County had appealed the writ case, arguing it had the right to use the jail for detention as long as no state monies were used. In January, 2002, the Appellate Court rejected this argument. Referring to statutory language that persons detained “shall not reside in correctional facilities,” the Court said, “The words ‘shall not’ are as unambiguous as any two words in the English language can be and they cannot rationally be misunderstood.”
The Souvannarath case brought needed change to Fresno County. Dr. Reynolds and Betty Tarr left county employment. The Health Department increased its budget for tuberculosis outreach, and health workers have been receiving training in patients’ rights and cross-cultural differences. The Sheriff installed a multi-language phone system in the jail to enable foreign-born inmates to speak in their own language to interpreters twenty-four hours a day. Compelled to detain patients in a facility rather than in jail, Fresno County signed a costly contract with High Desert Hospital in Los Angeles County, the only facility in the state available to house and treat infectious, noncompliant tuberculosis patients. A year later, Los Angeles County officials, facing a huge budget shortfall, proposed closing the hospital, but were persuaded by desperate users to extend it another year.
After a century of progress, the public health system is now seriously limited in its capacity to treat infectious diseases. Souvannarath, like thousands of others, immigrated to the United States without having been adequately tested for tuberculosis, was haphazardly diagnosed, and improperly treated. Unless the health system does a better job of reaching and treating the foreign-born, the global tuberculosis epidemic will continue, through legal and illegal immigration, to afflict the United States.
The managers and health care workers in the public health system also need to implement better strategies for dealing with noncompliant patients, domestic and foreign. Souvannarath’s resistance to treatment led to her illness being criminalized. Her incarceration sent a clear message to the immigrant community and underclass of Fresno – “If you’re sick, don’t tell.” Rather than persuading potential patients to seek help, her incarceration may well have driven others ill with tuberculosis underground.
Nation-wide, the challenges of controlling tuberculosis are growing, while the resources to do so are shrinking. In a recent example, the Washington, D.C., Health Department’s Tuberculosis Control Bureau, facing a TB rate almost three times the national average, was severely criticized in July, 2004, for lacking a detention facility for homeless, often HIV-infected, TB patients, and simply returning them to the streets. Fears about bio-terror have shifted funding for research and control programs of “mundane” diseases such as tuberculosis, to countermeasures against smallpox, anthrax, and other bio-weapons. The increasingly worrisome diseases we know, such as multi-drug resistant tuberculosis, are taking a back seat to the diseases of our nightmares.
Above all, however, the Souvannarath case raises disturbing issues concerning civil liberties. At the same time that fears about national security have led to highly questionable detentions of suspected terrorists and “enemy combatants,” fear of the physically and mentally ill in American communities has led to illegal detentions. In Souvannarath v Fresno, the Appellate Court spoke unambiguously about coercive medical treatment without due process of law, stating, “We appreciate that Hadden, Reynolds and Tarr are medical professionals and not lawyers. However, as public officials they must be held to know the basic provisions of the laws which empower them and govern the exercise of their particular offices and duties.”
To combat the growing use and abuse of civil detention, an aware public must hold its officials – whether health providers, immigration authorities, Department of Justice lawyers or the military – to that simple standard.