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Abstract: This article searches for solutions to the most perplexing problems in global health - problems so important that they affect the fate of millions of people, with economic, political, and security ramifications for the world's population. There are a variety of solutions scholars propose to improve global health and close the yawning health gap between rich and poor: global health is in the national interests of the major State powers; States owe an ethical duty to act; or international legal norms require effective action. However, arguments based on national interest, ethics, or international law have logical weaknesses. The coincidence of national and global interests is much narrower than scholars claim. Ethical arguments unravel when searching questions are asked about who exactly has the duty to act and at what level of commitment. And international law has serious structural problems of application, definition, and enforcement. What is truly needed, and which richer countries instinctively do for their own citizens, is to meet what I call "basic survival needs." By focusing on the major determinants of health, the international community could dramatically improve prospects for good health. Basic survival needs include sanitation and sewage, pest control, clean air and water, tobacco reduction, diet and nutrition, essential medicines and vaccines, and functioning health systems. Meeting everyday survival needs may lack the glamour of high-technology medicine or dramatic rescue, but what they lack in excitement they gain in their potential impact on health, precisely because they deal with the major causes of common disease and disabilities across the globe. If meeting basic survival needs can truly make a difference for the world's population then how can international law play a constructive role? What is required is an innovative way of structuring international obligations. A vehicle such as a Framework Convention on Global Health (FCGH) could powerfully improve global health governance. Such a Framework Convention would commit States to a set of targets, both economic and logistic, and dismantle barriers to constructive engagement by the private and charitable sectors. It would stimulate creative public/private partnerships and actively engage civil society stakeholders. A FCGH could set achievable goals for global health spending as a proportion of GNP; define areas of cost effective investment to meet basic survival needs; build sustainable health systems; and create incentives for scientific innovation for affordable vaccines and essential medicines. This article first examines the compelling issue of global health equity, and inquires whether it is fair that people in poor countries suffer such a disproportionate burden of disease and premature death. Second, the article explains a basic problem in global health: why health hazards seem to change form and migrate everywhere on the earth. Third, the article inquires why governments should care about serious health threats outside their borders, and explores the alternative rationales: direct health benefits, economic benefits, and improved national security. Fourth, the article describes how the international community focuses on a few high profile, heart-rending, issues while largely ignoring deeper, systemic problems in global health. By focusing on basic survival needs, the international community could dramatically improve prospects for the world's population. Finally, the article explores the value of international law itself, and proposes an innovative mechanism for global health reform - a Framework Convention on Global Health.
Abstract: The literature, both academic and judicial, on the intersection of law and health is pervasive. The subject of law and health is widely taught, practiced, and analyzed. The fields that characterize these branches of study are called health law, health care law, law and medicine, forensic medicine, and public health law. Do these names imply different disciplines, each with a coherent theory, structure, and method that sets it apart? Notably absent from the extant literature is a theory of the discipline of public health law, an exploration of its doctrinal boundaries, and an assessment of its analytical methodology. Public health law can be defined, its boundaries circumscribed, and its analytical methods detailed in ways that distinguish it as a discrete discipline-just as the disciplines of medicine and public health can be demarcated. With this book I hope to provide a fuller understanding of the varied roles of law in advancing the public's health. The core idea I propose is that law can be an essential tool for creating conditions to enable people to lead healthier and safer lives. In this opening chapter, I offer a theory and definition of public health law, an examination of its core values, an assessment of state statutes in establishing the legal foundations of public health agencies, a categorization of the various models through which law acts as a tool to advance the public's health, and, finally, a description of the current debate over the legitimate scope of public health. These are the questions I will pursue: What is public health law and what are its doctrinal boundaries? Why should population health be a salient public value? What are the legal foundations of governmental public health? How can law be effective in reducing illness and premature death? And what are the political conflicts faced by public health in the early twenty-first century? My definition of public health law follows, and the remainder of this chapter offers a justification as well as an expansion of the ideas presented: Public health law is the study of the legal powers and duties of the state, in collaboration with its partners (e.g., health care, business, the community, the media, and academe), to assure the conditions for people to be healthy (to identify, prevent, and ameliorate risks to health in the population) and the limitations on the power of the state to constrain the autonomy, privacy, liberty, proprietary, or other legally protected interests of individuals for the common good. The prime objective of public health law is to pursue the highest possible level of physical and mental health in the population, consistent with the values of social justice. Several themes emerge from this definition: (1) government power and duty, (2) coercion and limits on state power, (3) government's partners in the public health system, (4) the population focus, (5) communities and civic participation, (6) the prevention orientation, and (7) social justice.
public health, government power, social justice, duties of the state
Abstract: Statutes, regulations, and litigation are pivotal tools for creating the conditions for people to lead healthier and safer lives. Law can educate, create incentives, or deter; mandate safer product design and use of property; and alter the informational, physical, or economic environment. This chapter defines public health law as the power and duty of the state to assure the conditions for people to be healthy and the limitations on the state's power to constrain autonomy, privacy, liberty, and proprietary interests of individuals and businesses. It suggests five essential characteristics of public health law: (1) government's responsibility to defend against health risks and promote the public's health; (2) the population-based perspective of public health, emphasizing prevention; (3) the relationship between the government and the populace; (4) the mission, core functions, and services of the public health system; and (5) the power to coerce individuals, professionals, and businesses for the community's protection. The complex tradeoffs between the common good and private interests pose intellectual challenges, both theoretical and essential to the body politic.
Abstract: This article deals with a foreign policy question of extraordinary importance: What responsibilities do States have to provide economic and technical assistance to other states that have high levels of need affecting the health and life of their citizens? The question is important for a variety of reasons. There exist massive inequalities in health globally, with the result that poorer countries shoulder a disproportionate burden of disease and premature death. While poor countries have by far the greatest ongoing health needs, they also have the least capacity to meet those needs. In addition to the pervasive and debilitating effects of endemic disease, developing countries are likely to suffer much more from the effects of acute health hazards, ranging from natural disasters and dislocations to emerging infectious diseases.
Certainly, governments and philanthropic organizations have responded to highly visible natural disasters, droughts, and famines - at least while the issue remains salient in the media. And there has been increased international assistance for high-profile health threats such as AIDS and pandemic influenza. Even factoring in these new investments, most OECD countries have not come close to fulfilling their pledges to donate 0.7% of Gross National Income per annum.
The question then arises, if states have the capacity to assist less developed states (while continuing to fulfill their obligations to the health of their own citizens) to what extent do they have a well-defined legal or ethical responsibility to do so? We claim that States have a responsibility to help, derived from international law, political commitments, ethical values, and national interest. However, international law does not enable states to operationalize this responsibility in specific cases and in a transparent manner. As a result, transnational cooperation by states tends to be ineffectual and inconsistent - although states can and sometimes do act effectively when ethical and legal responsibilities and commitments align with self-interest.
human rights, healthcare inequality, international law
Abstract: HIV/AIDS affects people throughout the world - their health, their communities, and their countries' economic structures. It is truly a global epidemic, imposing a burden on all countries and regions, leaving none immune from its devastating impact. Of the forty-two million people infected with HIV/AIDS, almost ninety percent live in developing countries, which can least afford the sickness, death, and loss of productivity associated with the epidemic. Prevention of HIV/AIDS would benefit all regions and countries, irrespective of the prevalence or incidence of HIV/AIDS in the population, as all social and economic life in the early twenty-first century is interconnected. HIV/AIDS in one part of the world is bound to affect the health, economy, and security of countries everywhere. Given the level of need, there ought to be little disagreement that the more prosperous countries of North America and Europe should be devoting significant resources for education, prevention, and treatment in the poorer countries of Africa and Southeast Asia. International organizations such as UNAIDS, the WHO, and the World Bank have issued warnings and calls for action. Yet, political leaders in developed countries have not viewed it in their self-interest to provide the kind of resources needed. This lack of political will to cooperate may be caused, in part, by insular attitudes toward world health, economics, and politics and in part by the fact that resource-rich and resource-poor countries have markedly different priorities tailored to the different dynamics of the epidemic in their regions. Developing countries have been hurt not only by lack of political will, but by the interplay of drug companies, patents, and international law. Pharmaceutical companies have been unwilling to take steps to make drugs and potential vaccines available in resource-poor markets, instead electing to vigorously defend their proprietary interests in their drug patents. This strategy drives up the costs of most modern medications, leaving them out of reach for the poor. International law tends to support protection of these patents, but may provide some opportunity to circumvent property rules to protect the public's health. The research community has struggled with whether the ethical standards held in developed countries apply when engaging in research in less developed countries. Stakeholders are at odds and struggle to find the balance between ensuring strong ethical standards and expediting access to cost-effective treatments in poor countries. Although many of these trials would doubtless be regarded as unethical if conducted in the United States, given the social and economic context, it may have been unethical not to conduct the most rigorous and efficient international studies. The strategies needed to reduce significantly the burden of HIV/AIDS are well known and demonstrated to be effective. What is still needed are the economic resources and political will necessary to implement comprehensive programs for AIDS prevention and treatment in every region.
HIV, AIDS, public health, global reach of HIV/AIDS, global AIDS, HIV/AIDS, UNAIDS, economic assistance, patent protection
Abstract: Highly pathogenic Influenza (HPAI) has captured the close attention of policy makers who regard pandemic influenza as a national security threat. Although the prevalence is currently very low, recent evidence that the 1918 pandemic was caused by an avian influenza virus lends credence to the theory that current outbreaks could have pandemic potential. If the threat becomes a reality, massive loss of life and economic disruption would ensue. Therapeutic countermeasures (e.g., vaccines and antiviral medications) and public health interventions (e.g., infection control, social separation, and quarantine) form the two principal strategies for prevention and response, both of which present formidable legal and ethical challenges that have yet to receive sufficient attention. In part II, we examine the major medical countermeasures being considered as an intervention for an influenza pandemic. In this section, we will evaluate the known effectiveness of these interventions and analyze the ethical claims relating to distributive justice in the allocation of scarce resources. In part III, we will discuss public health interventions, exploring the hard tradeoffs between population health on the one hand and personal (e.g., autonomy, privacy, and liberty) and economic (e.g., trade, tourism, and business) interests on the other. This section will focus on the ethical and human rights issues inherent in population-based interventions. Pandemics can be deeply socially divisive, and the political response to these issues not only impacts public health preparedness, but also reflects profoundly on the kind of society we aspire to be.
pandemic influenza, law, ethics, public health, vaccines
Abstract: Public health interventions should be justified because they intrude on individual rights and incur economic costs. Coercive interventions can be justified only in three cases: to avert a risk of serious harm to other persons, to protect the welfare of incompetent persons, and, most controversially, to prevent a risk to the person herself. This chapter proposes a systematic evaluation of public health regulation. The article recommends that public health authorities should bear the burden of justification and, therefore, should demonstrate: (1) significant risk based on scientific evidence; (2) the intervention's effectiveness by showing a close fit between means and ends; (3) economic costs are reasonable; (4) human rights burdens are reasonable; and (5) benefits, costs, and burdens are fairly distributed. This series of articles has sought to provide a fuller understanding of the varied ways in which law can advance the public's health. Public health law should be seen broadly as the government's power and responsibility to assure the conditions for the population's health. As such public health law has transcending importance in how we think about government, politics, and policy.
Abstract: This article provides a theory and definition of public health law based on the book, Public Health Law: Power, Duty, Restraint (University of California Press 2000). No inquiry is more important to public health law than understanding the role of government in the constitutional design. If public health law principally addresses government's assurance of the conditions for the population's health, then what activities must government undertake? The question is complex, requiring an assessment of duty (what government must do), authority (what government is empowered, but not obligated, to do), and limits (what government is prohibited from doing). In addition, this query raises a corollary question: Which government is to act? The Supreme Court sees the Constitution in negative, or defensive, terms. This provides a sterile, uninspiring vision of government obligation. While the Court sees few affirmative obligations, it does acknowledge a broad governmental authority to protect the health, safety, and welfare of the population. The emergence of "new federalism" in Supreme Court jurisprudence alters the division of power between the federal government and the states. By restricting the scope of national authority, the Rehnquist Court is seriously thwarting public health policy and practice. Often, when the government acts to promote the health of the populace, it limits personal or economic freedoms. As a society, we face a trade-off between the common good and individual interests. The article explains why it is imperative to highly value the collective good of public health.
Abstract: The U.S. government's homeland security project is a controversial one, largely because it has the effect of placing into conflict two sets of fundamental values: the public's health and safety versus personal and economic liberties. Resolving this conflict requires an understanding of the various interests, a recognition of key choices, and the development of a framework to balance individual and collective interests. Part I of this paper sets forth a risk assessment of the threat posed by bioterrorism and concludes that the risk is sufficiently high to justify liberty-limiting powers to detect and respond to that threat. Such powers include vaccination, treatment, quarantine, nuisance abatements, and takings of private property. Part II argues that instead of focusing the debate on whether the government should have these powers, it is more appropriate, given that the risk from bioterrorism is stratified, to ask under what circumstances may an exercise of authority be justified. Part III examines two political theories, liberalism and communitarianism, as a way to test the assumption that state power may, in some circumstances, be justified. Though at first glance these two theories would seem to advocate distinct responses to the question of the legitimacy of state power, in reality, the exercise of public health powers to avert a considerable risk is justifiable under both theories. Finally, Part IV presents a framework for balancing competing personal and collective interests to address the question of when, that is, under what circumstances, state power should be exercised. This framework advocates the use of traditional powers to further the goal of public security while requiring compliance with predetermined standards and procedures. Difficult trade-offs are an inevitability - at times, national security will be compromised out of respect for constitutional values, and at other times individual freedom and autonomy will be compromised out of respect for collective interests. Ultimately, the question as to how far personal and economic liberties can be circumscribed in the name of protecting the public's health and security is answered by way of categories. The first risk category involves targeted state action to avert a significant risk to the public's health - here, liberal and communitarian thought converge in supporting state action in such instances. The second risk category refers to state action exercised arbitrarily or pretextually - again, liberalism and communitarianism converge, but in rejecting the use of such power in the absence of risk. The final category involves state action to avert a moderate risk, that is the government reasonably believes the risk is real, yet hard evidence is lacking as to the nature and probability of that risk. It is in this category that hard trade-offs exist. The framework posed in this article is one way to facilitate those decisions which will allow the use of state power to safeguard the public's health while preventing state overreaching.
Abstract: SARS was a reminder of the continuing threat of epidemic disease in the world. This paper discuss examples of how regions faced with SARS turned to disease control strategies based on public health law, such as "personal control measures" like quarantine and isolation; weaknesses in the ability of nations' legal systems to frame balanced, coordinated and well-executed public health programs for rapid disease containment; and the responses of diverse populations to restrictive personal control measures. The paper uses the experiences of governmental entities of Singapore, the Hong Kong Special Administrative Region, Canada, and the United States to illustrate important public health law and preparedness challenges for infectious disease control. While the experiences of these nations may not perfectly apply in other nations, they represent a spectrum of political and legal cultures. The paper concludes with recommendations encouraging enhanced legal preparations for public health emergencies.
Public Health Law, International Law, WHO
Abstract: The balance between individual interests and common goods needs to be recalibrated in an age of terrorism. Public health agencies should have a robust infrastructure to conduct essential public health services at a level of performance that matches evolving threats to the health. This includes a well-trained workforce, electronic information, surveillance, and laboratory capacity. Public health preparedness also requires a sound legal infrastructure. This article presents and defends the provisions of the Model Emergency Health Powers Act (MSEHPA). The Center for Law and the Public's Health at the request of the U.S. Centers for Disease Control and Prevention (CDC) and in collaboration with governors, legislators, attorneys general, and public health officials wrote the MSEHPA. First, this article explains the provisions of MSEHPA. The MSEHPA has been adopted in whole or part in 20 states and the District of Columbia. Second, this article shows why extant public health laws provide a weak foundation for public health practice. They are obsolete, inconsistent, and inadequate from a public health and civil liberties perspective. State legislation does not facilitate, and may even impede, all of the critical variables for public health preparedness. Finally, the article offers a systematic defense of MSEHPA. The Model Act has galvanized the public debate around the appropriate balance between public goods and individual rights. This defense shows how the Model Act creates strong public health powers, while safeguarding individual freedoms (adopting clearer standards and more rigorous procedures than existing statutes). In a country to tied to rights rhetoric, any law reform initiative that has the appearance of strengthening governmental authority is bound to travel in tumultuous political waters.
Abstract: The newly-introduced Standards for Privacy of Individually Identifiable Health Information represent the first systematic national privacy protections of health information. Flowing from a Congressional mandate in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the regulations protect the privacy of individually-identifiable health records in any form (including electronic, paper and oral) through disclosure and use limitations, fair information practices, and privacy and security policies that apply to "covered entities" (health providers, health insurance plans and health care clearinghouses) and their business associates. Privacy safeguards are needed because of the personal nature of health data, the rapid shift from paper to electronic records, and actual and perceived risks of unwarranted disclosures. Existing health information privacy legal protections at the federal and state levels are fragmented, inconsistent, and variable. The new standards endeavor to protect patient privacy by limiting disclosures of individually-identifiable medical information (or "protected health information" (PHI)). Disclosure and use of PHI can only occur upon patient consent, subject to several exceptions outside the health care transaction setting. The regulations also implement fair information practices, which have long been a feature of existing federal laws. Fair information practices allow patients to (1) inspect and amend their records, (2) receive notice of covered entities' privacy practices and potential uses and disclosures of health information, and (3) request confidential communications and an accounting of actual disclosure. Through the regulations, HHS attempts to set a "floor" for protections that, it suggests, "balance[s] the needs of the individual with the needs of society." Reaching this balance, however, is precarious. The national privacy rule does not always achieve a fair and reasonable allocation of benefits and burdens for patients and the community. We suggest a framework for balancing that values privacy and common goods, without a priori favoring either. We instead seek to maximize privacy interests where they matter most to the individual and maximize communal interests where they are likely to achieve the greatest public good. Thus, where the potential for public benefit is high and the risk of harm to individuals is low, we suggest that public entities should have discretion to use data for important public purposes. Provided that the data are used only for the public good (e.g., research or public health), and the potential for harmful disclosures are negligible, there are good reasons for permitting data sharing. Conversely, if data are disclosed in ways that are unlikely to achieve a strong public benefit, and the personal risks are high, individual interests in autonomy should prevail. Consequently, for these kinds of disclosures, the law should strictly prohibit the release of information without the patient's consent. Through this framework we attempt to maximize individual and communal interests in the handling of identifiable health data.
Abstract: The balance between individual interests and common goods needs to be recalibrated in an age of terrorism. Public health agencies should have a robust infrastructure to conduct essential public health services at a level of performance that matches evolving threats to the health. This includes a well-trained workforce, electronic information, surveillance, and laboratory capacity. Public health preparedness also requires a sound legal infrastructure. This article presents and defends the provisions of the Model Emergency Health Powers Act (MSEHPA). The Center for Law and the Public's Health at the request of the U.S. Centers for Disease Control and Prevention (CDC) and in collaboration with governors, legislators, attorneys general, and public health officials wrote the MSEHPA. First, this article explains the provisions of MSEHPA. The MSEHPA has been adopted in whole or part in 20 states and the District of Columbia. Second, this article shows why extant public health laws provide a weak foundation for public health practice. They are obsolete, inconsistent, and inadequate from a public health and civil liberties perspective. State legislation does not facilitate, and may even impede, all of the critical variables for public health preparedness. Finally, the article offers a systematic defense of MSEHPA. The Model Act has galvanized the public debate around the appropriate balance between public goods and individual rights. This defense shows how the Model Act creates strong public health powers, while safeguarding individual freedoms (adopting clearer standards and more rigorous procedures than existing statutes). In a country too tied to rights rhetoric, any law reform initiative that has the appearance of strengthening governmental authority is bound to travel in tumultuous political waters.
Abstract: Justice is so central to the mission of public health that it has been described as the field's core value. Our account of justice stresses the fair disbursement of common advantages and sharing of common burdens. It captures the twin moral impulses that animate public health: to advance human well-being by improving health and to do so particularly by focusing on the needs of the most disadvantaged. This commentary explores how social justice sheds light on major ongoing controversies in the field, and it provides examples of the kinds of policies that public health agencies guided by a robust conception of justice would adopt.
Abstract: This chapter explores the parameters of government's role in controlling the informational environment: first, in conveying health information (government speech); second, in constraining advertising that adversely affects the public's health (commercial speech); and third, in requiring product health and safety disclosures or counter-advertising (compelled commercial speech). The chapter concludes with a case study on the regulation of cigarette advertising. The chapter examines the conflict between the collective value of restraints on the free flow of harmful health-related information and the individual value of free expression.
Abstract: It has been only recently that scholars have engaged in a serious discussion of "public health law." This academic discourse examines the role of the state and civil society in health promotion and disease prevention within the country. There is an important emerging literature on the international dimensions of health, but no similar systematic definition and exposition of a field we call "global health law." In this article we aim to fill this gap by defining global health law and characterizing the grand challenges. Given the rapid and expanding globalization that is a defining feature of today's world, the need for a coherent system of international health law and governance has never been greater. We begin with a discussion of the health hazards posed by contemporary globalization on human health and the consequent urgent need for global health law to facilitate effective multilateral cooperation in advancing the health of populations equitably. We then offer a definition of the emerging field of "global health law." After explicating the central features identified in our definition, we turn to an examination of the "grand challenges" - legal, political, and social - to reaching the full potential of global health law to advance human health in just and effective ways. Our definition of global health law follows, and the remainder of this section explains the salient aspects of the definition: Global health law is the study of the legal norms, processes, and institutions needed to create the conditions for people throughout the world to attain the highest possible level of physical and mental health. The field seeks to facilitate health-promoting behaviour among the key actors that significantly influence the public's health, including international organizations, governments, businesses, foundations, the media, and civil society. Global health law should stimulate investment in research and development, mobilize resources, set priorities, coordinate activities, monitor progress, create incentives, and enforce standards. The field should be guided by the value of social justice, and seek equitable distribution of health services, particularly to benefit the world's poorest populations. The domain of global health law primarily is concerned with (1) formal sources of public international law, including, for example, treaties establishing the authority and responsibility of states for the health of their populations and duties of international cooperation, and (2) formal subjects of international law, including states, individuals, and public international organizations. However, to be an effective global health governance strategy, global health law must evolve beyond its traditional confines of formal sources and subjects of international law. It must foster more effective collective global health action among governments, businesses, civil society and other actors. Accordingly, our definition of global health law is prescriptive as well as descriptive: it sets out the sort of international legal framework needed, but still unavailable, to empower the world community to advance global health in accordance with the value of social justice.
public health, social justice, governance
Abstract: Public health can be achieved only through collective action, not through individual endeavor. Collective goods are essential conditions for health, but can be secured only through a well-regulated society. Yet, successive governments have eroded health and safety protections, with serious consequences. Think about the death of miners, lead in children's toys, industrial solvents in toothpaste, salmonella in peanut butter, e-coli in spinach, and unsafe or ineffective pharmaceuticals such as COX-2 inhibitors or non-statin cholesterol medications.
Conservatives have waged a campaign against the administrative state that has created and reinforced deep-seated concerns about over-bearing government, particularly at the national level. The political dialogue used to describe agency action is pejorative and effective: "big government," "centralized top-down," "bureaucratic," "command and control." This anti-government narrative has set the terms of the debate about the role of government in protecting the public from market excesses and failures. It has quietly led to pervasive deregulation, allowing the market to dictate business and consumer behavior.
The "Deregulatory State" takes many subtle forms, including self-policing, so that industry discloses and corrects its own safety violations; incapacitating, so that agencies are starved of expertise and resources; devolving, so that residual regulation is focused at the local level; preempting, so that the federal government denies states the authority to protect its citizens; and privatizing so that government functions are conducted by "for profit" or voluntary entities. In this column, I will focus on two broad categories of deregulation: federal preemption and privatization.
preemption, privatization, public health
Abstract: Historically, public health law has been shaped by the social response to serious epidemics. Boards of health and full-fledged health departments were created in the late 18 and 19th centuries in response to yellow fever and cholera. Disease reporting, mandatory screening, and compulsory treatment became common in the law in response to TB and syphilis. HIV proved to be no exception. The need to respond, and the special role of law as a medium for resolving social disputes in the U.S., gave public health law a renewed importance. Advocates turned to law as a tool for promoting their desired HIV policies. Lawyers, judges, policy-makers and public health officials were challenged to adapt old practices to new needs, and develop new solutions to new problems. In the process, public health law has re-emerged as a vital discipline of public health, with a stronger connection to practice and a deeper intellectual foundation. After a brief overview of the statutes and cases arising from the epidemic, the chapter describes how HIV/AIDS perfected a change in the use of public health power. In the face of HIV/AIDS, public health has accepted the limits of law as a means to coerce behavior change among people with or at risk of communicable disease; at the same time, it has become more interested in understanding and addressing how law contributes to the social conditions in which people would be most likely to behave in healthy ways. The chapter focuses on two examples of this change in practice: the effort to use law to reduce social risk, and the development and application of a human rights framework in public health practice. The chapter concludes with some thoughts on the influence of HIV/AIDS on the future course of law in public health.
HIV, public health law, history, litigation, legislation
Abstract: The examination of public health law traditionally focuses on constitutions, statutes, regulations, and common law at the national and sub-national level. However, the determinants of health (e.g., pathogens, air, food, water, even lifestyle choices) do not originate solely within national borders. Health threats inexorably spread to neighboring countries, regions, and even continents. Peoples' lives are profoundly affected by commerce, politics, science, and technology from all over the world. Global integration and interdependence occur "as capital, traded goods, persons, concepts, images, ideas, and values diffuse across state boundaries." It is for this reason that law and policy need to be transnational, i.e., extending beyond sovereign nations. There is no other way to truly ensure the public's health than through cooperation and global governance. This chapter searches for answers as to why health hazards seem to change form and migrate everywhere on the earth; why extant global governance systems are frequently ineffective; and how international law can be used as a tool for improving the health of the world's population, especially the poorest and most vulnerable. This requires an understanding of the global dimensions of disease and man's role in harming the planet; the meaning and sources of international law; and modern international regimes of high relevance to health, including infectious diseases, tobacco, trade, and human rights.
Abstract: The field of public health law traditionally focuses on law at the national and sub-national level. National legal systems, however, are inadequate to deal with major threats to humans. Despite the inadequacies of national governance, there are fundamental questions that need resolution in the field of global health law: Why should governments care about the health of people far away? Are profound health disparities just and, if not, is there a corresponding obligation to redress the injustice? Can international law effectively bind governments, foundations, and corporations to act for the global good? This article, based on a lecture at Emory Law School, asks the hard questions and offers some ways forward for the future of global health.
public health, national governance, global health
Abstract: Law plays essential roles in public health. Law defines health officials' jurisdiction, and specifies how they exercise their authority. It is a tool of public health work used to establish norms for healthy behavior. Policymakers use the law's language of rights, duties and justice in the most important social debates about public health taking place in legislatures, courts and administrative agencies. This article examines the subject and definition of public health, reviews the core functions of public health as they relate to law, identifies challenges confronting communicable disease control, surveys the current landscape of state communicable disease control law, and proposes guidelines for reform of state law to satisfy both legal and public health critiques. The subject of public health. At a minimum the goal of public health is to attain the highest level and widest distribution of physical and mental health that a society reasonably can achieve within the limits of resources available. To effectively combat complex disease threats, the public health approach to disease control must evolve from the microbial, to the behavioral, to the ecological approach. Core functions of public health and the law. Building on the Institute of Medicine's important 1988 study The Future of Public Health, the article identifies the core public health functions necessarily covered by law as: 1) health promotion and disease prevention, 2) assessment, data collection and analysis; 3) provision of medical services; and 4) leadership and policy development. Challenges facing communicable disease control. Health officials must overcome substantial challenges to meet the needs of the public for protection from communicable diseases. These include structural issues such as their limited jurisdiction, popular apathy about public health goals, disease-associated stigma and social hostility that may interfere with effective public health work, and the public's distrust of government health officials. Public health officials must also contend with a crumbling pubic health infrastructure, emergence and re-emergence of old and new disease threats, and changes in the health care environment including managed care and shifting of some disease prevention and surveillance activities from the public to the private sector. Survey of current public health law. Public health law in the United States is ripe for reform. Existing laws often represent multiple layers of provisions from the late 19th and early 20th centuries enacted in response to epidemics of communicable disease. Older statutes do not reflect modern understandings of disease transmission and do not conform to current constitutional or statutory requirements. Proliferation of disease-specific statutes create redundancies in the law that both foster confusion and expend valuable resources. Laws, both old and new, may harbor ambiguities that interfere with public health officials' ability to identify, prevent, and respond to threats to the public's health. State provisions may have weak privacy protection for some types of public health data. Guidelines for reforming public health law. Public health law should: 1) define a broad mission of public health authorities to prevent and control communicable diseases through interventions at the microbial, behavioral and ecological level; 2) be based on uniform provision that apply equally to all communicable diseases, eliminating whenever possible disease-specific statutes; 3) recognize voluntary cooperation as the primary way to obtain compliance with public health measures; 4) base use of compulsory powers on a demonstrated threat of significant risk; 5) provide procedural due process protections; 6) provide a range of options for public health officers including a graded series of alternatives and require use of the least restrictive alternative that will accomplish the public health goal; 7) provide strong privacy protections based on fair information practices, limited disclosure of data, and monitoring of health department practices and substantive justification for data collection.
Abstract: Is the 'harm principle', famously propounded by J.S. Mill and widely adopted in bioethics, an appropriate principle to guide public health regulation? The harm principle limits liberty-limiting interventions to only those instances where the person poses a significant risk of harm to others. However, much of public health regulation is not primarily directed to avert risk to others, but to safeguard the health and safety of the individual him or herself. Think about regulations regarding seatbelts, motorcycle helmets, or the fluoridation of water as illustrations of pervasive public health regulations that are primarily intended to safeguard the individual's own health or safety. Even laws designed to reduce smoking are justified, at least in substantial part, by the reduction of risk to the smoker. Certainly, scholars argue that there are 'other-regarding' aspects to these kinds of laws, but there is little doubt that there are strong paternalistic features to these, and many other, public health laws, such as bans on trans fat in foods. This article directly and forcefully questions the Millian principle, making the case for hard paternalism. When seen from a population-based perspective that counts the number of lives saved, paternalism becomes a plausible justification for interventions that do not pose a truly significant burden on individual liberty, but go along way toward safeguarding the health and wellbeing of the populace.
JS Mill, public health, harm principle
Abstract: A novel strain of Influenza A (H1N1) spread rapidly through Mexico in April 2009 and now spans the globe. By the time WHO was notified and responded, geographical containment was not feasible, leading the agency to call for mitigation. The international outbreak of SARS in 2003 and the more recent Influenza A (H5N1) among birds with limited transmission to humans helped prepare the world for the current pandemic threat. SARS galvanized the WHO to revise the antiquated International Health Regulations (IHR) in 2005, which took effect June 15, 2007. Governments instituted preparedness plans in response to avian influenza. Despite increased preparedness, the WHO and US Centers for Disease Control and Prevention (CDC) lack key powers and resources. Reminiscent of past responses, many governments are acting out of fear or economic and political self-interest rather than scientific reason. Above all, there are serious questions of global justice, as Mexicans are subject to stigma and discrimination. This article by Lawrence O. Gostin, O’Neill Professor of Global Health Law at Georgetown University, analyses WHO powers and resources including the pandemic alert system and the IHR, as well as the powers and resources of the CDC. He finds that although the response to H1N1 has been strong, the WHO and CDC need more authority and resources to deal with pandemic threats under the rule of international law.
international law, health law, swine flu, global health
Abstract: Of all the vulnerable groups that face stigmatization in our society, persons with mental disabilities are perhaps the most disadvantaged. The litany of abuses perpetrated against persons with mental disabilities is long and sadly varied. Persons with mental disabilities have been involuntarily confined without due process or adequate cause, subjected to squalid living conditions, denied appropriate care and treatment both within and outside of institutions, and confronted with daunting physical and social barriers that prevent their full participation in society. Moreover, the widespread recognition of this mistreatment has not prevented it from continuing to occur in multiple locations around the world. Despite occasional examples of deep caring and compassion, the vast majority of communities continue to treat persons with mental disabilities according to the hurtful and incorrect stereotypes of incompetency and dangerousness. This article explores the changing norms in mental health systems around the world. Frequently, these systems - and the societies that implement them - fail to protect the health and well-being of persons with mental disabilities. In order to remedy these historical and ongoing problems, mental health policies should incorporate human rights standards and corresponding notions of fairness and justice. More specifically, mental health law and policy should provide due process and humane treatment for persons housed in institutional settings, facilitate individualized mental health care plans and community care wherever possible, and recognize the right to health in the form of public access to mental health care.
Abstract: The international migration of health workers - physicians, nurses, midwives, and pharmacists - leaves the world's poorest countries with severe human resource shortages, seriously jeopardizing the achievement of the U.N. health Millennium Development Goals (MDGs). Advocates for global health call active recruitment in low-income countries a crime. Despite the pronounced international concern, there is little research and few solutions. This commentary focuses on the international recruitment of internationally educated nurses (IENs) from the perspective of human rights and global justice. It explains the complex reasons for nurse shortages in rich and poor countries; the duties of source and host countries; the human rights of health workers; and offers principles for responsible recruiting, focusing on national and global solutions.
nurses, migration, health workers, public health, global health, human rights
Abstract: World-acclaimed authority Lawrence O. Gostin analyzes biosecurity policy since 9/11. He begins with the question: Are we safer now? Then comes a review of biosecurity legislation, followed by discussion of planning to deal with specific diseases and the problems with such an approach, and then an explanation of what the right approach is. He concludes by covering the Model State Emergency Health Powers Act and related civil liberties questions.
Model State Emergency Health Powers Act, biosecurity, national security
Abstract: The collection of essays in this issue illustrates the breadth of knowledge to be gained from examining approaches to legislating and litigating health care rights and experiences across several national jurisdictions. The emphasis is on rights to publicly-funded health care and the struggle to determine a just allocation of public resources in countries as diverse as New Zealand, Israel, Canada, South Africa, Norway, the United Kingdom, and the United States. The issue of rationing health care in publicly-funded systems receives is examined. There are also insights for health care systems with more private funding, such as the United States system, where both private and public payers are increasingly looking to ways to legitimately ration or prioritize access to health care even if it is only for the purpose of expanding profit margins. The respective roles of government and the courts play out differently in different contexts. However, the potential of the courts to improve fairness within a system and to reduce inequalities through interpretation of existing legislation manifestly exists in all of these jurisdictions. Their will to do so may depend upon the extent to which they can be persuaded of the legitimacy of their role in this regard. Thus, the examples of courts taking on this role in other jurisdictions may prove more than just of academic interest.
Abstract: The goal of achieving good mental health remains an important global concern, although one that is often overlooked and undermined by policymakers and politicians. Persons living with mental disabilities often face substantial obstacles to improving their mental health and participating fully in their communities and societies. They have been subjected to discrimination, stigmatization, and other indignities, including involuntary confinement without fair process, inability to access needed care and treatment, and the erection of social and economic barriers that limit their opportunities. This chapter will articulate a robust conception of a human right to mental health, and illustrate the need to conceive of the right to mental health in a broader way within a human rights framework. Our conception of a right to mental health embraces a complex and interrelated relationship between mental health and physical health, and between the right to mental health and other human rights. Mental health comprises an integral component of overall health and well-being. Likewise, the right to health, as it exists in international human rights instruments, necessarily and clearly encompasses both physical and mental health. Just as it is difficult to address the right to health without contemplating other related human rights, mental and physical health cannot be considered separately in the context of human rights - a minimum level of both mental and physical health are necessary to ensure the ability to enjoy and benefit from other human rights. Thus, efforts to recognize and uphold a human right to health must incorporate strategies to protect, respect, and fulfill mental health as well as physical health. Establishing and upholding affirmative mental health rights can fundamentally advance the dignity and welfare of persons with mental disabilities, and, simultaneously, advance the recognition and development of the right to health generally.
Abstract: The Connecticut Attorney General's recent allegations that the Infectious Disease Society of America violated antitrust law through its treatment guidelines for Lyme disease were neither based in sound science or appropriate legal judgment. Strong scientific evidence favors IDSA's position that chronic infection with the etiologic agent of Lyme disease does not occur in the absence of objective signs of ongoing infection and that long-term antibiotic use to treat dubious infection, recommended in the quasi-scientific guidelines put forth by the International Lyme and Associated Diseases Society (ILADS), are of no benefit. In siding with ILADS and other chronic Lyme disease advocates, ultimately forcing IDSA to settle lest it expend exorbitant legal costs, the attorney general abused science and his public trust. This case exemplifies the politicization of health policy and confuses the relative spheres inhabited by normative discourse and scientific inquiry. Science should provide the evidentiary base for normative discussions, and values and politics will always be important in deciding how science is applied for human benefit. But a wall of separation is needed between science, values, and politics, as medical science, and the patients who depend on it, is too important for political distortion.
public health, health policy
Abstract: UNAIDS and WHO recommend safe, voluntary male circumcision as an additional, important strategy for the prevention of heterosexually-acquired HIV in men in areas with high HIV prevalence and low levels of male circumcision. Comprehensive male circumcision services should include HIV testing and counseling, partner reduction, and male and female condom use. Yet, male circumcision can have deep symbolic meaning that could pose barriers to implementation. In some parts of the world, it is a traditional practice with religious or cultural significance, in others it is a common hygiene intervention, and in yet others it is unfamiliar or foreign. Consequently, the proportion of men who are circumcised varies from <5% to >80%, with an estimated 30-40% of adult men circumcised worldwide.
Confirming a number of observational studies, three randomized controlled trials in Africa have shown that circumcision reduces the likelihood of female-to-male HIV transmission by 50-60%, leading WHO/UNAIDS to conclude that the evidence is "compelling." Male circumcision is a relatively simple, inexpensive one-time surgical procedure that is cost-effective, but raises a host of ethical, legal, and human rights challenges.
health policy, HIV/AIDS, circumcision
Abstract: In many countries in the region of the Americas, persons with mental disabilities can be involuntarily confined in psychiatric institutions for indefinite periods with hardly any justification and little or no oversight. Such circumstances clearly violate the human rights principles of liberty and due process found in binding international and regional legal instruments. Furthermore, the countries of the Americas generally have failed to adopt legislation or interpret constitutional provisions consistent with human rights principles and guidelines. The oversight and monitoring mechanisms of the Inter-American Human Rights System can constitute an effective legal tool that can be used to promote and protect the human rights and fundamental freedoms of persons with mental disabilities by supplementing existing national laws or serving as a method of regulation in places where national laws are not available. Countries should enact national laws that apply basic due process protections for individuals involuntarily confined in mental health facilities. This would help to ensure that individuals are not admitted and detained arbitrarily, that the person's mental disability is sufficiently serious to warrant involuntary confinement, and that the decision to admit and detain the person is reviewed expediently and periodically by an independent, impartial tribunal. We contend that a more vigorous application of human rights norms by the Inter-American Human Rights System is necessary to hold states accountable for their treatment of persons with mental disabilities and to lead them to enact legislation protecting the rights of persons with mental disabilities who are confined involuntarily in psychiatric facilities.
Abstract: The President's Emergency Plan for AIDS Relief (PEPFAR) was the largest commitment by any nation to combat a single disease in human history, authorizing up to $15 billion over 5 years. On July 30, 2008, President Bush signed into law the historic reauthorization of PEPFAR, dramatically increasing the financial commitment by authorizing up to $48 billion over 5 years, including $5 billion for Malaria and $4 billion for Tuberculosis. PEPFAR's global targets are inspiring: treat 3 million people; prevent 12 million new HIV infections, and care for 12 million people, including 5 million orphans and vulnerable children. But, PEPFAR has been mired in controversy. To some, it exemplifies America's extraordinary compassion and generosity, and to others America's politicization of public health and unilateral approach to international health. The truth lies somewhere in between. American health assistance to the developing world stands at a crossroad. As PEPFAR is scaled up, will it provide opportunities to fulfill basic human needs, or will its limited focus pull resources from sustainable, capacity-building support in line with poor country priorities?
Abstract: Medical availability of effective pain medication is vitally important domestically and globally. Medical advances have substantially improved the technical capacity to control pain and diminish its consequences. Worldwide, millions of persons with chronic, acute, and terminal conditions have found relief from excruciating pain through medical intervention. However, richer countries have disproportionately benefited from improvements in access to and use of pain medication. The tragedy is that for most of the world's population, particularly persons in poorer countries, effective pain control is entirely unavailable.
pain relief, medication, pharmaceuticals
Abstract: This autobiographical article recounts Dean Lawrence Gostin's professional journey from the rights of mental health patients, to the civil liberties of individuals and groups, through to the broad welfare of large populations. In this article, Dean Gostin discusses the role that Erving Goffman's Asylums played in shaping his professional path. A truly observant advocate sees the power imbalances, the loss of a self-worth, the absence of pleasure and comfort, and the sheer dreariness of everyday life. This article uses news events of the time to reconstruct the author's approach to reforming the Mental Health Act of 1959 and litigation against psychiatric institutions. During his years at MIND (National Association for Mental Health) in the United Kingdom, the author wrote much of the Mental Health Act, and litigated foundational cases in the domestic courts and before the European Court of Human Rights, including the landmark case of X v. the United Kingdom. The author went on to lead the National Council of Civil Liberties (NCCL) (now called Liberty, which is the equivalent to the ACLU) through its 50th Anniversary, launching the "Liberty Campaign" among leading public figures. He chaired the Independent Inquiry into the National Miners Dispute, which resulted in his public resignation from NCCL and his move to Harvard University.
The article ends with a discussion of the values the author brings to national and global health, animated by a single profound question: If impoverished communities are suffering and dying young from avoidable illnesses such as AIDS, TB, diabetes, or heart disease, what does justice require? His answer is that the poor would gladly trade a small intrusion on autonomy and privacy for the chance to lead a healthier, more secure, life.
MIND, Mental Health, United Kingdom, NCCL, Human Rights
Abstract: This article is a contribution to the occasional series dealing with a major book that influenced the author. Previous contributors include Stewart Macaulay, John Griffith, William Twining, Carol Harlow, Geoffrey Bindman, Harry Arthurs, Andre-Jean Arnaud, Alan Hunt, and Michael Adler.
Abstract: Public health departments collect a vast array of identifiable information in the course of mandatory reporting efforts and other surveillance activities. These undertakings span a range of conditions from infectious threats and chronic diseases including cancer, to immunization status and birth defects. This article examines key ethical questions regarding the uses of public health data and establishes a code of restraint for using identifiable data to achieve affirmative public health duties. The code of restraint suggests that: 1) The failure to use data for public health purposes, including research and direct interventions, must be justified; 2) Strict norms of privacy and confidentiality must govern the sharing of data and de-identified or public health agencies anonymized data must be used whenever possible; 3) Releases must be done in a manner that minimizes and fairly distributes possible burdens resulting from them; 4) When releasing de-identified datasets, care must be taken to insure that individuals data sets are unidentifiable; 5) Alternative pathways must be exhausted before it is justifiable to release an individual’s identifiable information; and 6) Only under exceptional circumstances is it acceptable to use identifiable public health than public health agencies information for non health ends.
Abstract: Aid to developing countries has largely neglected the population-wide health services that are core to communicable disease control in the developed world. These mostly non-clinical services generate "pure public goods" by reducing everyone's exposure to disease through measures such as implementing health and sanitary regulations. They complement the clinical preventive and treatment services which are the donors' main focus. Their neglect is manifested, for example, in a lack of coherent public health regulations in countries where donors have long been active, facilitating the spread of diseases such as avian flu. These services can be inexpensive, and dramatically reduce health inequalities. Sri Lanka spends less than 0.2% of GDP on its well-designed population-wide services, which contribute to the country's high levels of health equity and life expectancy despite low GDP per head and civil war. Evidence abounds on the negative externalities of weak population-wide health services. Global public health security cannot be assured without building strong national population-wide health systems to reduce the potential for communicable diseases to spread within and beyond their borders. Donors need greater clarity about what constitutes a strong public health system, and how to build them. The paper discusses gaps in donors' approaches and first steps toward closing them.
Health Monitoring & Evaluation, Health Systems Development & Reform, Disease Control & Prevention, Population Policies, Gender and Health
Abstract: This book provides a wide-ranging assessment of laws and policies that impact HIV and AIDS. It shows how laws and regulations can either underpin or undermine good public health programs and responsible personal behaviors. Spanning 65 distinct legal topics, the authors demonstrate the scope and breadth of laws through a comparative law analysis. The book begins with a long section on public health laws, covering efforts to track the spread of the disease through testing and screening for HIV infections and AIDS; to deter transmission through prevention, prophylaxis, and partner notification; and to assist those infected through treatment. Next the authors address legal protection against discrimination across multiple areas of society including work, education, and health services. Subsequent chapters cover a variety of relevant topics including disclosure of HIV status, clinical research, access to information, and access to medicines. The legal issues facing several at-risk populations are specifically addressed in discrete chapters on women, children, men who have sex with men, sex workers, and injecting drug users.
The Guide is intended to be of practical use for legal reform to support effective action against HIV/AIDS. We seek to alert those working on AIDS strategies and projects to opportunities for legal and policy reform and to provide them with tools to tackle the job effectively. To achieve this, we adopted the following format for each topic: first, we identify the specific issue or issues raised by the topic, and we follow that with a discussion of the pertinent legal and policy considerations. Then we give at least one good practice example (often providing actual statutory language), and follow that up with a list of key references.
Abstract: This article examines the human rights of persons with mental disabilities and the application and development of these rights by the various international and regional systems that have been established to protect human rights. First, this article briefly examines three important relationships between mental health and human rights: 1) coercive mental health policies infringe on human rights; 2) invasions of human rights harm mental health; and 3) positive promotion of mental health and human rights has mutually reinforcing and synergistic results. Second, this article reviews sources of law within the United Nations system of human rights protection. Third, this article discusses regional human rights systems in Europe, Africa, and the Americas. These regional systems operate under human rights instruments distinct from the United Nations system and have achieved substantial progress in the development of human rights law relevant to persons with mental disabilities. Fourth, this article examines the application of civil and political rights to mental health by international and regional systems of human rights protection. The analysis focuses in depth on the most highly developed regional system of human rights protection — the European Convention of Human Rights (ECHR) within the Council of Europe — but also explores the intersection of human rights and mental health under the African and Inter-American regional systems. This part of the article demonstrates the vast potential of human rights law in three important areas of mental health policy: (1) the right to fundamental fairness in compulsory admission and subsequent detention in mental institutions — e.g., legal representation, a hearing, and use of independent experts; (2) the right to humane and dignified conditions of confinement — e.g., avoidance of neglectful or abusive conditions in mental hospitals and harmful or intrusive forms of medical treatment; and (3) protection of rights of citizenship — e.g., privacy, marriage, franchise, and association. Finally, the article discusses the application of social, economic, and cultural rights to mental health, particularly with respect to affirmative entitlements to mental health services. While the basis for recognizing economic, social, and cultural mental health rights exists in international and regional instruments, institutions at the international, regional, and domestic levels have been reluctant to pursue, define, or enforce such positive rights. The right to health, however, has undergone a significant evolution in recent years through the adoption of several significant instruments and reports at the international and regional levels. Concurrently, an expanding body of scholarly writing has examined the scope and application of the right to health. The idea of affirmative mental health rights can fundamentally advance the dignity and welfare of persons with mental disabilities. International human rights law, of course, leaves domestic governments with a wide range of discretion in relation to each of these rights and freedoms. Nevertheless, this body of international law opens each of these areas to serious external scrutiny and may provoke domestic governments to recognize and respect these rights and freedoms.
Abstract: As the international community negotiates a successor to the Kyoto Protocol of the United Nations Framework Convention on Climate Change (UNFCCC), there is new reason to hope that meaningful action might be taken to prevent devastating climate change. Even the more ambitious mitigation targets currently under negotiation, however, will not be sufficient to avoid a profound effect on the public's health in coming decades, with the world's poorest, most vulnerable populations bearing the disproportionate burden. The influence of historic and current emissions will be so substantial that it is imperative to reduce global emissions while at the same time preparing for the effects. Recently, the UNFCCC has begun to turn its attention to adaptation-changes to human systems to ameliorate the consequences of climate change. This Commentary proposes a new agenda for mitigation as well as adaptation approaches that emphasize the considerable health effects of climate change, which include increasingly intense and more frequent natural disasters, potential increases in vector-, food-, and water-borne infectious disease, and exacerbation of cardiovascular and respiratory disease. The effects of climate change will be experienced in every region but will disproportionately burden the global poor, exacerbating global health disparities and challenging the international community to address the inevitable questions of global social justice. Three key recommendations are proposed: (1) focus mitigation targets on broader health impacts, rather than framing climate change as a coastal issue; (2) incorporate land-use and agricultural approaches to mitigation alongside measures in the energy and transportation sectors to take advantage of co-benefits for health; and (3) fully fund adaptation projects as a global priority with an emphasis on strengthening health systems.
climate change, health, adaptation
Abstract: Lawrence Gostin, Visiting Professor of Global Health Law at the University of Sydney and the O’Neill Professor of Global Health Law at Georgetown University argues in The Australian that scarce swine flu immunization must go to the needy: The rapid global transmission of Influenza (A) H1N1 (swine flu) has sparked a worldwide race to develop an effective vaccine. Finding a technological solution to swine flu will be a major scientific advance, but vital questions of scarcity and fairness loom large. The swine flu vaccine will almost certainly be scarce, with manufacturers unable to meet the huge global demand. Governments face hard choices on how to ethically ration this scarce life-saving resource. Children and their caretakers should certainly be a high priority for swine flu vaccine because they rapidly spread the infection in day care and school. Yet privileging the elderly would be a mistake because they have contracted the new strain at the lowest rate and appear to have some immunity. Instead, government should assign top priority to the most vulnerable who have died at a disproportionate rate - those who have poor health such as heart disease, asthma, or diabetes. This is also the fairest way to allocate scarce vaccines because people with multiple health conditions also tend to be the most disadvantaged in society. It is vital that government makes allocation decisions fairly and transparently. The public has a right to know which groups will have priority access and why. One key problem, however, is that the private market is still likely to privilege the rich and politically connected in gaining access. Business culture is geared toward satisfying consumer demand, so the industry will charge what the market will bear for a scarce, valuable vaccine. Rich countries will face scarcity, but they will have much more ample supplies than poor countries. The pressure on governments to protect their own citizens will be intense during a pandemic. The vaccine industry is likely to supply markets that can afford to pay and in countries where they are located. More than 90% of the world’s capacity to manufacture influenza vaccines is concentrated in Europe and North America. This leaves poor countries in Africa, Asia, and Latin America much more vulnerable as the rich stockpile vaccines. Europe, and the United States are spending a fortune on vaccines and antiviral medication, but virtually none of these resources will benefit poor countries. Serious questions of global social justice arise when wealth, rather than need, becomes the primary allocation criterion. The mal-distribution of vaccines in the face of a global financial crisis will only widen the already yawning health gaps between the rich and the poor. Rich countries hoarding vaccines is also is a bad public health strategy because it allows the virus to circulate unchecked in highly populated developing countries. Even if it is not politically expedient, justice requires that scarce vaccines go to the most disadvantaged. Equitable access to a vaccine against swine influenza is not merely a moral imperative. It is also critically necessary to safeguard global health.
Influenza (A) H1N1, Swine Flu, Vaccine, public health, global health
Abstract: The law is a frequently overlooked tool for addressing the complex practical and ethical issues that arise from the HIV/AIDS pandemic. The law intersects with reproductive and sexual health issues and HIV/AIDS in many ways. Well-written and rigorously applied laws could benefit persons living with (or at risk of contracting) HIV/AIDS, particularly concerning their reproductive and sexual health. Access to reproductive health services should be a legal right, and discrimination based on HIV status, which undermines access, should be prohibited. Laws against sexual violence and exploitation, which perpetuate the spread of HIV and its negative effects, should be enforced. Finally, a human rights framework should inform the drafting of laws to more effectively protect health.
Abstract: This article examines the dynamic role of law as a tool, and potential barrier, to public health interventions designed to ameliorate the negative impacts of human immunodeficiency virus (HIV)/acquired immunodeficiency syndrome (AIDS) globally. Law impacts the lives of persons living with (and at risk of) HIV/AIDS in many ways. Laws may: (1) help to ensure that public health authorities are empowered to provide effective prevention and treatment programmes; (2) effectuate the human rights to life, health, work, education and property ownership of persons living with, or at risk of, HIV/AIDS; and (3) protect persons living with HIV/AIDS from social risks, stigma and other harms by respecting privacy and prohibiting unwarranted discrimination. However, laws can also create legal barriers in many countries that impede effective HIV/AIDS interventions by penalizing those with HIV/AIDS through criminal sanctions or other policies. As a result, it is recommended globally that laws should facilitate the prevention and treatment of HIV/AIDS consistent with scientific and public health practices and with a human rights framework. Effective use of existing laws that promote the public’s health, and reforms of laws which impede it, contribute to improved individual and communal health outcomes concerning HIV/AIDS.
Abstract: In 1972, I covertly entered a brutal, inhumane institution for the criminally insane in Eastern North Carolina as a pseudo-patient under a U.S. Department of Justice study. What I experienced during those many weeks would shape how I view what Irving Goffman called "total institutions." Since that formative experience as a young law student I have closely observed institutions that warehouse persons with mental illness in many regions of the world ranging from the Americas and Europe to the Indian subcontinent and Asia. Those experiences, together with the careful study of human rights reports and judicial decisions, have led me to one simple conclusion. Despite countless promises for a better life by national commissions, governments, and the international community, there has evolved a vicious cycle of neglect, abandonment, indignity, cruel and inhumane treatment, and punishment of persons with mental illness. This is not true in every place, time, and circumstance - there are pockets of deep caring and compassion. But for the vast majority, and in most geographic regions, this sad fact remains a tragic reality. The shameful history of benign, and sometimes malignant, neglect of persons with mental illness is well understood: the deep stigma and unredressed discrimination, the deplorable living conditions, and the physical and social barriers preventing their integration and full participation in society. The maltreatment of this vulnerable population has been reinforced by the hurtful stereotypes of incompetency and dangerousness. This article is based on a lecture at the Sheldonian, Oxford University, for Amnesty International. In this article I will show how this vulnerable population has been unconscionably treated. First, I will examine the gross human rights violations that have occurred, and continue to occur, in what I am calling "old" psychiatric institutions. During the mid-to-late twentieth century, however, many of these old institutions were closed as part of a social compact with mentally ill persons and their families to provide community care. The deinstitutionalization movement, however, resulted in new places of confinement for this population - jails, prisons, and homeless shelters. In the second part of this lecture, I will explore the new realities of criminal confinement of persons with mental illness. As we will see, incarceration of this vulnerable population in the criminal justice system has caused enormous suffering. And, if Dostoyevsky was correct that the "degree of civilization ... can be judged by entering its prisons," then by that measure we are a deeply uncivilized society.
human rights, mental illness, institutionalization
Abstract: This article searches for solutions to the most perplexing problems in global health-problems so important that they affect the fate of millions of people, with economic, political, and security ramifications for the world's population. No State, acting alone, can insulate itself from major health hazards. It is for this reason that safeguarding the world's population requires cooperation and global governance. What is truly needed, and what richer countries instinctively do for their own citizens, is to meet what I call basic survival needs. By focusing on the major determinants of health, the international community could dramatically improve prospects for good health. A vehicle such as a Framework Convention on Global Health (FCGH) could powerfully improve global health governance. Such a Framework Convention would commit States to a set of targets, both economic and logistic, and dismantle barriers to constructive engagement by the private and charitable sectors. It would stimulate creative public/private partnerships and actively engage civil society stakeholders. A FCGH could set achievable goals for global health spending; define areas of cost effective investment to meet basic survival needs; build sustainable health systems; and create incentives for scientific innovation for affordable vaccines and essential medicines.
Abstract: The Framework Convention on Tobacco Control (FCTC) identifies civil and criminal litigation as a public health strategy and promotes international cooperation (reporting, technical assistance, and information exchange). Holding the tobacco industry accountable through civil and criminal liability serves a number of public health objectives: punishes companies for hiding known health risks, manipulating nicotine content, and misleading the public; deters and preve nts future harmful behavior; compensates individuals and stake-holders for health care and other costs associated with smoking and exposure to environmental tobacco smoke (ETS); raises prices, resulting in lower tobacco consumption; increases disclosure of health risks, through labeling and advertising restrictions; and promotes transparency, by compelling discovery of internal industry documents. Tobacco litigation frequently has been used as a method for promoting tobacco control in the United States. Litigation is less common outside the United States, but increasingly advocates have brought innovative lawsuits abroad. This commentary explores global tobacco litigation strategies, with 4 key elements: compensation/recovery, advertising restrictions, criminal liability, and public interest writ litigation. The commentary argues that perhaps the most important effect of tobacco litigation has been to transform public and political perceptions about risk and responsibility in smoking, making clear what manufacturers knew, how they concealed this knowledge, and how they manipulated consumers. Tort law has reframed the debate from personal to corporate responsibility. However, the industry still manages, at least in the political realm, to alter the discourse to one involving freedom of choice for the smoker, the evils of big government, unfair taxation, and the influence of trial lawyers. Furthermore, now that the tobacco industry is aggressively seeking new markets in the poorest, least-regulated countries, litigation will take on new importance. The most promising strategies will use a human rights framework, arguing that tobacco is so detrimental that it violates the rights to health, life, and a sanitary environment.
Framework Convention on Tobacco Control, public health, global health
Abstract: Recent tobacco control regulation in North America and Western Europe has had a salutary effect, even if smoking remains a pressing public health hazard. But in the 21st century, the tobacco industry has quietly moved its locus of activity to lucrative, emerging markets: the vast populations in Africa, Asia, Eastern Europe, and Latin America. The poorest, least educated, and sickest people on earth inhabit these regions. "Big Tobacco's" new marketing strategy will cause untold morbidity for the world's most vulnerable. However, there are a variety of effective tobacco control policies that nations can and should enact. The World Health Organization treaty, the Framework Convention for Tobacco Control, requires signatory nations to adopt a variety of tobacco control policies to the fullest extent permissible under their constitutions. The Second Conference of FCTC Parties recently set regulatory goals in Bangkok, Thailand, including the first FCTC protocol on illicit trade of tobacco products, a second protocol on cross border advertising regulations. Effective tobacco control policies include: national tobacco regulatory agencies; comprehensive bans on tobacco advertising, promotion, and sponsorship; health warnings on cigarette packets that cover at least half of the packet, convey the risks, rotate messages, and use images; mandating smoke-free environments; and tax and price policies that make smoking prohibitively expensive.
This article examines legislation and regulation from all parts of the world in each of these spheres, and evaluates their effectiveness. The imperatives of science, ethics, and human rights oblige society to reduce the burden of smoking, particularly among the most disadvantaged.
tobacco, World Health Organization, FCTC
Abstract: Until the early 1970's, approximately 90% of all pharmaceutical research was conducted on prisoners, who were also subjected to biochemical research, including studies involving dioxin and chemical warfare agents. By the mid-1970's, biomedical research in prisons sharply declined as knowledge of the exploitation of prisoners began to emerge and the National Commission for the protection of Human Subjects of Biomedical Research was formed. Federal regulations to protect human subjects of research were established in 1974. Special protections for prisoners were added in 1978, severely limiting research involving prisoners. However, the US correctional system has undergone major changes since the adoption of the federal regulations, making it appropriate to reexamine the ethical framework for research involving prisoners. While the history of prisoner exploitation cautions against allowing research, modern science might be able to improve understanding of the intractable problems faced by prisoners. Finding a balance between encouraging beneficial research and safeguarding prisoners is challenging and politically controversial. This commentary presents a series of proposals, based on the recommendations of Institute of Medicine Committee on Ethical Considerations for Research Involving Prisoners. If adopted, the following proposals would provide such a system of safeguards while allowing responsible research. 1) Expand the Definition of Prisoner to include non-custodial prisoners, comprehensively covering all individuals whose autonomy and liberty are restricted by the justice system. 2) Ensure Universal, Consistent Ethical Protection of prisoners by regulating all research on prisoners uniformly, irrespective of the source of funding, supporting agency, or type of correctional facility. 3) Create a National Database of Prisoner Research to permit greater accountability, provide a scientific methodology for assessing the success of research projects, and facilitate the implementation of beneficial research findings to prisoner populations. 4) Shift from a Category-Based to a Risk-Benefit Approach to Research Review to ensure that research with prisoners should be conducted only if it offers a distinctly favorable benefit-to-risk ratio, not because prisoners are a convenient source of research participants or have no access to therapeutic treatment. 5) Update the Ethical Framework to Include Collaborative Responsibility meaning that, to the extent possible, stakeholders (e.g., prisoners, correctional officers, medical staff) should participate in the design, planning, and implementation of research. 6) Enhance Systematic Oversight of Research by strengthening safeguards, making them consistent, and applying them in relation to the levels of risk and restriction of liberty experienced by prisoner-subjects.
Abstract: Public health agencies face considerable challenges trying to prevent overweight and obesity in society, primarily because a person's own behavior is often the root cause of the disease. Individuals make personal choices about their diet, exercise, and lifestyle, so disease is often thought of as a matter of personal, not governmental, responsibility. This Commentary shows how law can be used as a tool to prevent overweight and obesity (see Table). The tools discussed in this article include: - Disclosure - e.g., labels and consumer information - Tort liability - e.g., inadequate disclosure of risks, misleading advertisements, and targeting children - Surveillance - e.g., reporting of glycosylated hemoglobin for diabetes management - Targeting children and adolescents - e.g., restricting food advertising during children's programs; counter advertising to promote good nutrition and physical activity; limiting the use of cartoon characters; and restricting web-based games and promotions - Taxation of unhealthy food - e.g., "junk food," "snack," or "Twinkie" tax provides disincentive for purchasing calorie-dense, nutrient-poor foods; tax revenue could also be used to promote healthy nutrition - School policies - e.g., require schools to adhere to dietary guidelines and portion size; increase opportunities for nutrition education and physical activities - Built Environment - e.g., limit fast food restaurants, build recreational parks and bike paths, expand mass transportation, and provide lighting and playgrounds in housing developments - Food Prohibitions - e.g., ban trans fat from restaurants Despite the undoubted political risks, should public health agencies push for strong measures to control obesity, perhaps even banning hazardous foods? The justification lies with the epidemic rates of overweight and obesity, the preventable morbidity and mortality, and the stark health disparities based on race and socioeconomic status. Although the public dislikes paternalism, it is at least worth considering whether such an approach is ever justified to regulate harms that are apparently self-imposed, but which are deeply socially embedded and pervasively harmful to the public.
Abstract: On September 22nd, 2006, the Centers for Disease Control and Prevention (CDC) issued a sweeping revision of its guidelines for HIV screening in health care settings that reversed decades of habitual thinking on AIDS policy. Previous guidelines recommended HIV testing only for persons at high-risk or in health care settings with high HIV prevalence. This reflected a civil liberties approach that constrained testing with costly, cumbersome procedures for pre-test counseling and written informed consent. The new guidelines represent a radical departure by recommending HIV screening for all individuals ages 13 to 64 as a part of routine medical care irrespective of lifestyle, perceived risk, or HIV prevalence. The recommendations incorporate a concept known as "opt-out" testing, which notifies all patients that testing will be performed unless an individual specifically declines. Separate written informed consent would no longer be required, but rather general consent for medical care would be sufficient. Similarly, counseling would not be required with HIV diagnostic testing or as part of HIV screening programs. This commentary examines the social and historical context of HIV screening, the changing epidemiology of HIV/AIDS, legislative and liability barriers to implementing CDC guidelines, and enduring conflicts between public health and civil liberties approaches to HIV/AIDS. The commentary concludes that the new CDC guidelines will facilitate prevention and treatment, but must overcome cultural and legal obstacles for success.
HIV, health care, civil liberties
Abstract: Conservatives are taking aim at the field of public health, targeting its efforts to understand and control environmental and social causes of disease. Richard Epstein and others contend that these efforts in fact undermine people's health and well-being by eroding people's incentives to create economic value. Public health, they argue, should stick to its traditional task - to struggle against infectious diseases. Because markets are not up to the task of controlling the transmission of infectious disease, Epstein says, coercive government action is required. But market incentives, not state action, he asserts, represent our best hope for controlling the chronic illnesses that are the main causes of death in individualized nations. In this article, we assess Epstein's case. We consider his claims about the market's capabilities and limits, the roles of personal choice and social influences in spreading disease, and the relationship between health and economic inequality. We argue that Epstein's critique of public health overreaches, oversimplifies, and veils his political and moral preferences behind seemingly objective claims about the economics of disease control and the determinants of disease spread. Public health policy requires political and moral choices, but these choices should be transparent.
Abstract: Though school vaccination has been an important component of public health practice for decades, it has had a controversial history in the United States and abroad. Subject to exceptions, including individual medical, religious, and philosophical objections, modern state school vaccination laws mandate that children be vaccinated prior to being allowed to attend public or private schools. State school vaccination requirements are widely thought to serve important public health purposes. However, they also provoke popular resistance. Historical and modern examples of the real, perceived, and potential harms of vaccination, governmental abuses underlying its widespread practice, and strongly-held religious beliefs have led to fervent objections among parents and other "antivaccinationists" on legal, ethical, social, and epidemiological grounds. Historic and modern legal, political, philosophical, and social struggles surrounding vaccination are vividly reflected in legislative and judicial debates on the powers, and limits, of government to compel school vaccination policies. At the crux of public debate are core concerns about the tradeoffs between public health benefits and the infringements on individual and parental freedoms arising from the systematic vaccination of millions of school age children in the United States. Public health authorities argue that school vaccination requirements have led to a drastic decrease in the incidence of once common childhood diseases. Antivaccinationists tend to view the consequences of mass vaccination on an individualistic basis, focusing on alleged or actual harms to children from vaccinations for which government vaccination requirements are at fault. In this article, we discuss this debate through an examination of the historical and contemporary aspects of immunization requirements as a condition of school attendance. Part II provides a brief history of vaccination as a medical and public health practice, using smallpox disease as the primary case study, and subsequently addresses corresponding societal and individual objections to the proliferation of vaccination programs. Part III reviews the subsequent legislative and judicial reactions to these policies. Did state and local lawmakers second guess the need for school vaccination laws, and, if so, for what reasons? How did courts construe these laws? Our judicial examination includes a review of the various legal and constitutional objections to school vaccination policies, including those based on religious beliefs under the First Amendment, equal protection theories, and due process concerns. The historical and modern legal and social contexts supports a contemporary discussion of views about school vaccination requirements in Part IV. We examine the modern debate through a scholarly discussion of available evidence of the public health effectiveness of school vaccination programs. We compare (1) childhood immunization rates and (2) rates of vaccine-preventable childhood diseases before and after the introduction of school vaccination requirements. These data suggest that school vaccination requirements have succeeded in increasing vaccination rates and reducing the incidence of childhood disease. Finally, we discuss modern antivaccination arguments. Like arguments from the past, modern antivaccination sentiment is fueled by general distrust of government, a rugged sense of individualism, and concerns about the efficacy and safety of vaccines.
school vaccination, antivaccinationists, constitutional law, history, safety, efficacy
Abstract: The newly-introduced Standards for Privacy of Individually Identifiable Health Information represent the first systematic national privacy protections of health information. Flowing from a Congressional mandate in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), the regulations protect the privacy of individually-identifiable health records in any form (including electronic, paper and oral) through disclosure and use limitations, fair information practices, and privacy and security policies that apply to covered entities (meaning health providers, health insurance plans and health care clearinghouses) and their business associates. Privacy safeguards are needed because of the personal nature of health data, the rapid shift from paper to electronic records, and actual and perceived risks of unwarranted disclosures. Existing health information privacy legal protections at the federal and state levels are fragmented, inconsistent, and variable. The new standards endeavor to protect patient privacy by limiting disclosures of individually-identifiable medical information (or protected health information (PHI)). Disclosure and use of PHI can only occur upon patient consent, subject to several exceptions outside the health care transaction setting. The regulations also implement fair information practices, which have long been a feature of existing federal laws. Fair information practices allow patients to (1) inspect and amend their records, (2) receive notice of covered entities privacy practices and potential uses and disclosures of health information, and (3) request confidential communications and an accounting of actual disclosures. Through the regulations, HHS attempts to protect individual privacy while recognizing legitimate needs for such data to process health claims and deliver medical care as well as provide for communal goods (including public health and health research). Many of these provisions leave significant gaps in privacy protection. At times the regulations promote inappropriate trade-offs between the public welfare and individual privacy. The regulations inadequately protect privacy in certain contexts, including consent requirements for use and disclosure of PHI for health care purposes and some fair information practices provisions. In contrast, the regulations sometimes fail to assure that information can be used when necessary for significant communal benefits or require substantial burdens on the health care industry without providing meaningful protection for patients.
Abstract: This article considers the applicability of the U.S. Constitution to American health policy, a topic only occasionally addressed in the health policy literature. Gostin and Javitt are concerned with the government's power - and limits thereon - to exert control over the public's receipt of information that is pertinent to health. They analyze three means by which government might do this: through restrictions on commercial speech, through requirements that might be attached to commercial speech (e.g., warning labels), and through health-related messages by the government itself. As Gostin and Javitt note, the First Amendment protects private citizens from governmental interference with expression, but it has no specific application when government is the speaker. They report that there is very little jurisprudence or scholarship on the permissible boundaries of government speech on matters of health. Drawing on the law that applies to commercial speech, Gostin and Javitt propose some legal and ethical principles that should apply when the government is the source of information.
Abstract: A critical objective in achieving effective legal protection against discrimination based on health conditions has been the development of an adequate definition of the category of health conditions that are deemed deserving of legislative protection. Generally, this definition attempts to exclude health conditions of a trivial or inconsequential nature, while, at the same time, the condition need not be so severe as to render the individual unqualified for the program or workplace in question. Beginning with the enactment of the Rehabilitation Act in 1973, federal legislative efforts have been directed at the development of a statutory definition of "disability" as a means of defining this concept. Under these federal laws, "disability" is defined as an impairment that substantially limits a major life activity. The definition, however, does not reference any specific health condition, nor does it define "substantial limitation" or "major life activity." The prohibition of discrimination based on Human Immunodeficiency Virus (HIV) status was a specific goal of more recent enactments such as the Americans with Disabilities Act of 1990 (ADA). Nevertheless, understanding in what sense "asymptomatic" HIV infection is a disability - it presents no apparent limitations on everyday activities - is invaluable in comprehending the purpose of federal disability nondiscrimination law in general and in assessing alternative approaches, such as those adopted by some states. Although federal nondiscrimination laws such as the ADA were initially deemed by the courts to be inclusive of HIV as a disability, in several more recent cases that view was disputed, including, most notably, the Supreme Court's 1998 decision in Bragdon v. Abbott. More recent decisions of the Supreme Court have given additional consideration to the federal statutory definition of disability. The authors conclude that most, if not all, individuals with HIV infection are protected under federal law, although determining whether such an individual is protected is a potentially complex inquiry in some cases, depending on the facts. Although many states have incorporated the federal disability definition into state nondiscrimination statutes, many states have adopted alternative standards. These include HIV-specific statutes, which explicitly reference the protected health condition (e.g., HIV infection). Other states use a generic disability definition that is either broader or narrower than the federal disability definition. Additionally, many states impose limitations on the use of HIV testing or the use of HIV test results for discriminatory purposes. The authors present a fifty-state survey of HIV-specific statutes, as well as more general state disability statutes. These laws are reviewed both descriptively and analytically, and whether they provide protection for HIV status independent of federal law is assessed, as is the extent of the protection offered. An appendix to the article provides a table summarizing significant features of state laws, and a separate compilation provides a state-by-state summary of the disability definition as it relates to HIV infection.
Abstract: For centuries, persons have endeavored to keep their sexually-transmitted infections hidden from the social world -- from their sexual partners, families, and communities. Secrecy nurtures disease for it provides an environment conducive to the spread of infection. Sex partners are unaware of the risks, and public health authorities cannot track the epidemic. Not surprisingly, one of the earliest recorded public health strategies for sexually-transmitted disease (STD) prevention was to pierce the veil of secrecy surrounding these hidden diseases by notifying sexual partners ("contacts") of infected patients ("index" cases). From its widespread use during the 1930's, the notification of sexual partners with the assistance of public health authorities remained an accepted part of the law and practice of STD control. The modern public health construct known as "partner notification" is often confused with other legal and ethical duties. Known collectively as the "duty to warn," these judicially-imposed, common law obligations are comprised of two duties based on distinct legal foundations: (1) the duty of infected persons to disclose to partners the risk of exposure and (2) the duty of health care professionals to warn partners of harm resulting from exposure to infected patients. These duties constitute two other meanings of partner notification besides contact tracing. To public health practitioners, the traditional practice of partner notification -- its widespread, persistent, and systematic use over time in relation to traditional STDs or HIV/AIDS -- justifies its continued implementation. Despite its widespread use, partner notification has not been systematically analyzed. The authors examine partner notification from legal, ethical, empirical, and economic perspectives. Under this analytical structure, they find that partner notification is not justified as a national public health practice. Although its basis in moral tradition is sound, the lack of demonstrable proof of its effectiveness, both empirically and economically, renders it unacceptable for widespread use in the field of public health where scientific support of usefulness as a preventive strategy is crucial. The authors support and discuss alternative models for STD prevention and control that are both effective and protective of individual liberties and privacy.
Abstract: The trend toward managed care presents promising opportunities for improving the health of large populations. Capitated financing arrangements and performance-based reimbursements, in theory, create imperatives for these plans to promote behavior that reduces health risks and to emphasize preventive services that may forestall costly future medical treatments. By extension, healthier communities minimize the assumption of risk and medical resource utilization, particularly as new members join a particular health plan. Managed care can further improve the health of the nation by eliminating a serious structural deficiency in public health. These organizations, rather than governmental public health agencies, are more closely associated with the health of the people and, thus, are better positioned to observe and influence personal behavior, identify clusters of diseases and injuries within the enrolled population and, through investigation, find out what caused them. The authors suggest that the private provision of certain public health functions such as clinical prevention and personal medical services should result in efficiencies and cost-savings, thereby allowing public health to fulfill its quintessential role of developing population-based strategies to identify health risks and to improve behavioral, environmental, social and economic conditions that affect the health status of wider populations. A recognition of managed care's stake in public health does not, however, resolve the complex issues of how to achieve a redistribution of resources to focus more on prevention and community public health services. The reality is that managed care's norms and practices emphasized short run profits, while returns on investment in community health are profitable in the long run. The authors conclude that the basic power or obligation of organized society to protect and preserve the health of populations justifies government action to change the incentive structure. Through well-conceived delegations, incentives and regulations, managed care can complement government public health activities to maximize societal welfare. Further, the authors argue that managed care organizations have independent social and ethical obligations to add a community component to their activities.
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