Part I: Foundations of Public Health Law
PHL: Mapping the Issues
This week we begin a development of a definition and theory of public health law. It provides a justification of the special role of government to assure the conditions for people to be healthy. This justification is based on theories of democracy, normative ideas about the foundational importance of health, and an historical perspective.
PH = interventions, regulations of food product, drugs & advertising; infectious & chronic dieseses; injuries, quarentine; etc.
1. A brief overview: objectives
Define public health through an examination of public health theory and practice;
Examine the structure and functions of the public health system and the integral role of law in public health practice;
Discuss the role of government (including judicial), community, and individual involvement in health;
Outline a framework for public health ethics;
Assess legal and ethical conflicts between governmental interests in health and individual interests in liberty; and
Apply principles of public health law and ethics to real world examples.
2. Public Health Overview
Definition: Society’s obligation to assure the conditions for people’s health
Mission: Promote physical & mental health; prevent disease, injury, and disability
Functions:
Assessment – assemble and analyze community health needs
Policy development – informed through scientific knowledge
Assurance – Services necessary for community health
Jurisdiction/Domain:
Narrow focus – proximal risk factors (e.g., infecious disease control, hygiene & sanitation; clean air & water; safe roads and products; health edu and promotion)
Problems: lacks vision. Fail to see root causes of ill health and utilize a broad range of tools to achieve healther populations.
Broad focus – distal social structures (e.g., discrimination, homelessness, socioeconomic status). Socioecon Impacts (social status, race, wealth, edu). Interventions/tools to improve PH (econ redistribution; social restructuring; behavioral modification; social science)
DHHS “Determinants of Health” = physical env, behavior and biology, social enviornment
Leads to PH research into areas of general social policy (city planning and safe housing, violence, war, discrimination)
Justified by import of culture, poverty, and powerlessness on the health of populations
Problems:
field of ph appears less credible if it overreaches
BP pros do not possess all the expertise/skill necessary to intervene on behavioral, social, physical, and env levels
Risk of losing polticial and public support. PH gains credability by adherence to science, if stray to political advocacy it may lose apperance of objectivity.
Expertise/Skills: Epidemiology and biostatistics, education and communication, leadership and politics
3. Conseptual Challenge – What is public health?
Public health law is no longer viewed narrowly as a subset of health law focused on the practice of laws concerning communicable diseases, public health nuisances, and sanitation.
Institute of medicine definition – broad definition. “Public health” has been defined by the IOM as “is what we, as a society do collectively to assure the conditions for people to be healthy.”
“we, as a society” = goes beyond govt & communtites, intros idea that this is a collective responsibility. Emphasis on cooperative and mutally shared obligations.
Collective goods (i.e. env protection, hygiene and sanitation, clean air and surface water, uncontaminated food and water, safe roads & products) achievable only thgrough organized and sustained community activities.
“assure the conditions” = not assuring the outcomes, only the conditions. Conditions can include ed, econ support, env factors, rights, etc
WHO – A nonaccomplishable goal, an asperational goal
Objective: The attainment by all peoples of the highest possible level of health.
Definition of health: A state of complete physical, mental and social well-being and not merely the absence of disease or infirmary.
Scope of PH Challenges (legal, conceptual, ethical, political, cultural, financial, organizational, scientific)
Political because many of the things that we are trying to achieve through PH are not achievable by individuals alone…requries something like the policical process to get it done.
CDC Celebrating a century of success: 10 great PH Achievements in the US from 1900-1999
Vaccinations
Safer workplaces
Safer and healthier foods
Motor-vehicle safety
Control of infectious diseases
Decline in deaths from coronary heart disease and stroke
Family planning
Recognition of tobacco use as a health hazard
Healthier mothers and babies
Fluridation of drinking water
Scope of public health challenges:
Living and working conditions may include:
Psychosocial factors
Employment status and occupational factors Socioeconomic status (income, education, occupation)
The natural and builtc environmentsPublic health services
Health care services
Over the life span
Most of these are not as easy to accomplish one-on-one
Other types of approaches: engaging in broad information dissemination, regulations, etc
4. What is PHL? Gostin Definition
The legal powers and duties of government used primarily to assure the conditions for people to be healthy (e.g., to identify, prevent, and ameliorate risks to health in the population), and
the structural (e.g. separation of powers, federalism) and rights-based (e.g. privacy, liberty, autonomy) limitations on the power of the state to act in the interests of the public’s health or constrain legally- protected interests of individuals.
The police power is the most famous expression of the natural authority of sovereign governments to regulate private interests for the public good. The police power is the inherent authority of a state to protect, preserve and promote the health, safety, morals, and general welfare of the people. To achieve these communal benefits, the state retains the power to restrict, within constitutional limits, private interests— personal interests in autonomy, privacy, association, and liberty as well aseconomic interests in freedom to contract and use property.
Common Law – Jacobson v Mass
Person refused vaccination = allowed states to use police power to enforce (can’t force him but can fine)
“The liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good.”
State statues
There has been a trend to revamp public health laws that have been considered to be very outdated (100 years old and more) to include modern disease risks and treatments.
Discrepancies of laws at state level and those at the local level
Local boards
Relationship to fed powers
International Law
WHO – IHR = expanded times when they can go into a state take care of business
b. Law as a PH Tool
a. Alter individual behavior (Education, health communication campaigns. Incentives, tax & spend powers. Deterrence, civil & crim penalties for risky behavior).
b. Regulates the agents of behavior change by requiring safer product design (e.g. safety standards and indirect regulation through the tort system).
c. Alters the information (ad restraints), physical (city planning and housing codes), business (inspection and licenses) enviornments.
d. Tax & spend
i. Pro: taxes can be used to discourage something or to provide funding for the program charged with a public health need
ii. Cons: taxing bad things like cigerettes disproportionately affect the poor
ii. Spending = hwy funds linked to drinking age (South Dakota vs Dole) – wouldn’t allow federal hyw funds to be released unless drinking age was raised to 21
