A graduate of Rice University, Dr. Kapur has designed and taught emergency medicine and public health training programs for international physicians, nurses and primary healthcare workers. He has also worked on the development of emergency public health systems in low- and middle-income countries with an emphasis on low-cost, high-yield strategies.
Public health law is experiencing a renaissance. Once fashionable during the Industrial and Progressive eras, the ideals of population health began to wither in the late 20th century.
In their place came a sharpened focus on personal and economic freedom. Political attention shifted from population health to individual health and from public health programs to private medicine.
Signs of revitalization of the field of public health law can be seen in diverse national and global contexts. Why are these diverse international, governmental, and nongovernmental organizations paying such close attention to public health law?
The reason is that law is essential to achieving the goals of population health. Law creates public health agencies, designates their mission and core functions, appropriates their funds, grants their power, and limits their actions to protect a sphere of freedom. Public health statutes establish boards of health, authorize the collection of information, and enable monitoring and regulation of dangerous activities.
It is no exaggeration to say that the field of public health is grounded in statutes and regulations found at every level of government. Law can be empowering, providing innovative solutions to the most implacable health problems.
Of the 10 great public health achievements of the 20th century, most were realized, at least in part, through law reform or litigation: Only three family planning, healthier mothers and babies, and reduced deaths from coronary heart disease and stroke did not involve law reform.
Law, therefore, can be a powerful agent for change in society, and policymakers need to be familiar with all the legal tools at their disposal.
However, the law also places limits on what public policy can do, and policymakers must be prepared to wrestle with difficult legal, social, and ethical concerns that will arise in conjunction with potential public health initiatives.
What is public health law? I have defined public health law as the study of the legal powers and duties of the state to promote the conditions for people to be healthy and the limitations on the power of the state to constrain the autonomy, privacy, liberty, or proprietary or other legally protected interests of individuals for the protection or promotion of community health.
To understand the role of law in public health, it is useful to begin with a description of the legal basis for government authority the police power and the limits on that authority. The word had a secondary usage as well: This use resonates with early 20th-century public health connotations of hygiene and sanitation.
I define police power as the inherent authority of the state to enact laws and promulgate regulations to protect, preserve, and promote the health, safety, morals, and general welfare of the people.
To achieve these communal benefits, the state retains the power to restrict, within federal and state constitutional limits, private interests—personal interests in autonomy, privacy, association, and liberty, as well as economic interests in freedom to contract and uses of property.
The police powers include all laws and regulations directly or indirectly intended to reduce morbidity and mortality in the population.
States exercise police powers for the common good: Government, to advance the common good, is empowered to enact legislation, regulate, and adjudicate in ways that necessarily limit private interests.
For example, the police power affords states the authority to keep society free from noxious exercises of private rights, such as the dumping of toxic waste. The police powers authorize government to exercise compulsory powers for the common good, but the state must act in conformity with constitutional and statutory constraints.
Whenever government exercises coercive powers, it interferes with personal rights to liberty, bodily integrity, privacy, property, or other legally protected interests. The exercise of police power therefore often presents hard trade-offs between promoting the common good and protecting individual rights.
Consider the following actions that government can take to protect the public from infectious disease as a classic illustration of the conflicts between public health and civil liberties.
Public health agencies collect, use, and disclose a considerable amount of personal health information. The law requires health care institutions and professionals to report specified information to health officials.
Public health agencies can also monitor health records to provide early warnings of disease outbreaks. Surveillance is critically important to disease control, but it also interferes with the right of privacy.
Vaccination, treatment, and bodily integrity. Public health agencies have the power to compel vaccination, medical examinations, and treatment, including directly observed therapy.
The courts have upheld state therapeutic powers but with certain safeguards. Public health officials have long had the power to order isolation or quarantine to protect against the spread of infectious disease. For example, these measures were used sporadically in the United States, and extensively in Canada and Asia, during the severe acute respiratory syndrome SARS outbreaks.
Although courts authorize the deprivation of liberty for the public good, health officials must provide patients with procedural due process. Thus, before using these measures or soon after in cases of emergencyindividuals must have the right to a hearing with a legal representative.Dr.
Bobby Kapur serves as director of educational affairs for the section of emergency medicine at Baylor College of Medicine (BCM). A graduate of Rice University, Dr.
Kapur received his Doctor of Medicine from BCM and a Masters of Public Health . The Public Inspection page on rutadeltambor.com offers a preview of documents scheduled to appear in the next day's Federal Register issue.
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