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Bob Ferguson

AGO 1956 No. 227 -
Attorney General Don Eastvold


 Persons shortly after their admission to either county or city jails may be required to submit to a chest X-ray having for its purpose the discovery of tuberculosis.
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                                                                  March 19, 1956

 Bernard Bucove, M.D.
State Director of Health
1412 Smith Tower
Seattle 4, Washington                                                                                                              Cite as:  AGO 55-57 No. 227

 Dear Dr. Bucove:

             We have your letter of March 7, 1956, receipt of which has been previously acknowledged.  In that letter you request our opinion on the following question:

             "May persons shortly after their admission to either county or city jails be required to submit to a chest x-ray having for its purpose the discovery of tuberculosis?"

             It is our opinion that the above question should be answered in the affirmative.


             Under chapter 70.06 RCW, the authority to administer health laws at the local level is given to county health boards operating through a county health officer under the supervision and control of the state board of health.  Among the powers granted to a county health officer are those found in RCW 70.06.030.  Such section reads in part as follows:

              [[Orig. Op. Page 2]]

            "He may remove to and restrain in a pesthouse or isolation hospital, or quarantine or isolate any person sick with any dangerous, contagious, or infectious disease until such person has thoroughly recovered and been disinfected:  Provided, That no person shall be removed to or restrained in a pesthouse or isolation hospital until he has been examined by the health officer or a medical deputy."

             It is a matter of common and scientific knowledge that tuberculosis is a communicable disease.  It is equally a matter of common knowledge, as well as a basic scientific fact, that the use of chest x-rays to ascertain the presence of infectious tuberculosis is a recognized and generally approved method of diagnosis.  To define the power of the health officer further, on December 4, 1948, the Washington state board of health adopted the following regulation as part of the rules and regulations of the state board of health governing the control of communicable and certain other diseases:


             "A. Pulmonary

Isolation.  Of such active cases as do not observe the precautions to prevent the spread of the disease.  The place of isolation to be in such quarters as designated appropriate by the jurisdictional health officer and for such time as necessary until one of the following conditions is fulfilled: (1) the patient's pulmonary disease is considered to be 'apparently arrested' (National Tuberculosis Association classification ‑ 1940), (2) the patient agrees to accept routine sanatorium care, (3) the patient dies, (4) other arrangements for adequate isolation are made which, in the opinion of the jurisdictional health officer, protect the public from the spread of infection."

             RCW chapter 36.63 [[chapter 36.63]]sets out the duties of the sheriff, the superior court judges, and other persons relative to the management of county jails.  RCW 36.63.050, subsection (3), makes it the duty of the sheriff to enter in the jail register "what sickness, if any, has prevailed in the jail during the year and, if known, what was the cause thereof;"

              [[Orig. Op. Page 3]]

            Concerning the jail rules prescribed by the superior judge, RCW 36.63.060 provides in part as follows:

             "The judges of the superior courts of the several counties may, from time to time, prescribe in writing, rules for the regulation and government of the jails, upon the following subjects:

             ". . .

            "(5) The employment of medical and surgical aid, when necessary;

             ". . .

             "(10) Such other regulations as the judges deem necessary to promote the welfare of the prisoners:  Provided, That such rules shall not be contrary to law."

             In regard to the removal of infected prisoners from city jails, RCW 70.20.140 reads as follows:

             "When a person in a jail or prison is attacked with any disease which the officers of the city or town upon medical advice, consider dangerous to the safety and health of other prisoners, or of the inhabitants of the city or town, they shall, by written order, direct his removal to some place of safety, there to be securely kept and provided for until their further order; and if he recovers from the disease, he shall be returned to his place of confinement."

             It seems that a fair reading of the above statutes and the regulation of the state board of health would clearly require a prisoner to submit to a chest x-ray so that the officers charged with performance of certain duties under such statutes and regulations, could intelligently follow the mandates of the legislature and of the regulation.  Thus, the only matter remaining for decision is whether or not some constitutional right of the person is being violated by the requirements of the statutes and regulations.

              [[Orig. Op. Page 4]]

            We feel that the above question has been fully answered by our supreme court in the case of State ex rel. Holcomb v. Armstrong, 39 Wn. (2d) 860.  In that case, the board of regents of the University of Washington had by regulation required a chest x-ray of all students, as a condition precedent to registration.  A student questioned the constitutionality of this act of the board of regents on the ground that the submission to such an x-ray would violate certain tenets of the religious organization with which she was affiliated.  In the cited case, there was no general regulation of the state board of health requiring that students submit to chest x-rays, but even in the absence of such general regulation the board of regents promulgated the regulation in question.  In answer to the constitutional attack, our supreme court, sitting en banc, said on page 864:

             "With these principles in mind, we cannot say the questioned regulation violates any constitutional inhibition.  Here the public interest threatened is the health of all of the students and employees of the University.  It may lawfully be protected.  In this case, it is of more importance than the right of appellant which is infringed.  The danger to this interest is clear and present, grave and immediate.  Infringement of appellant's rights is a necessary consequence of a practical attempt to avoid the danger.  The questioned requirement utilizes the generally approved method of combating the danger, and no practical method which might not possibly infringe a constitutional right is shown.  It is a regulation pertaining to the second aspect of the constitutional inhibition, mentioned in theCantwell case, supra, in which aspect the conduct of appellant is subject to regulation for the protection of others.  Her 'freedom to believe' remains absolute."

             Again, on page 866, the court said:

             ". . .  At least, it must have been intended that they [the board of regents] would not permit an infectious disease to spread on the campus, if a way to prevent its doing so become known to them.  Mere contemplation of an institution where action necessary for that purpose cannot be taken by its governing board, when no other public authority has acted, answers any doubt upon the subject."

              [[Orig. Op. Page 5]]

            We likewise feel that, where it is the duty of various officers to protect the health and safety of those persons placed under their charge, any reasonable method, such as chest x-rays, to prevent the spread of an infectious disease among those persons, is not only a wise precaution but, we feel, is a therapeutic measure which, if neglected, would certainly subject the officers involved to criticism, if not liability.

             For your information and in further support hereof we are attaching an opinion of the attorney general to Donald G. Evans, M. D., Director, department of health, dated January 3, 1939; also AGO 55-57 No. 169 dated December 3, 1955 [[to John J. O'Connell, Prosecuting Attorney, Pierce County]].

             We are, therefore, of the opinion no claimed constitutional right of any prisoner can prevail against a requirement that chest x-rays be given as soon as possible after admittance to a jail.

             We sincerely hope this opinion will be of assistance to you.

 Very truly yours,
Attorney General 

Assistant Attorney General