Public Health Law

Ethics, Governance, and Regulation

John Coggon, Keith Syrett, A. M. Viens

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781138790780
• eBook ISBN: 9781317653035
• Topic: Medicine
• Subtopic: Medical Law

Public health activity, and the state's public health responsibilities to assure the conditions in which people can be healthy, can only be achieved through different means of social coordination. This places law and regulation at the heart of public health. They are fundamental both to methods of achieving public health goals and to constraints that may be put on public health activity. As such, trainees, practitioners, and leaders in public health need to understand the breadth and nature of wide-ranging legal and regulatory approaches and the place of ethics in public health.

Public Health Law, written by three leading scholars in the field, defines and examines this crucial area of study and practice. It advances an agenda whose scope extends far beyond that covered in traditional medical law and health care law texts. The authors provide an account of the scale of contemporary public health policy and practice and explain its philosophical depths and implications and its long legislative and regulatory history. They advance a definition of the field and explore how different legal approaches may serve and advance or constrain and delimit public health agendas.

This ground-breaking book presents the field of public health ethics and law and goes on to examine the impact within the UK of private law, criminal law, public law, EU and international law, and 'softer' regulatory approaches. It is a primary point of reference for scholars, practitioners, and leaders working in public health, particularly those with an interest in law, policy, and ethics.

Part I
Foundations

Chapter 1
Public health

1.1 Why public health and law?

This book defines and explores the field of public health law, examining its foundations, its scope and limits, and its many and varied facets. It explains how legal and other regulatory measures can both serve and restrict the pursuit of agendas in public health. Our aim is that it should provide an introduction for practitioners, policy-makers, students, scholars, and general readers who are interested in public health ethics and law and who want to understand how they impinge on different aspects of public health policy and practice. Contemporary understandings of public health conceive a field whose breadth extends across political divides and transcends social and jurisdictional boundaries. Conceptually, public health is not limited to one sector or discipline. Rather it pervades governmental activities and social responsibilities, drawing on expertise in the humanities and social and natural sciences, as well as clinical medicine. It entails responding to and preventing disease, assuring a sound infrastructure to provide a sanitary environment, and understanding and addressing the social determinants of ill health.¹

In addressing this vast agenda, various approaches may be adopted, ranging from self-regulation, through different private and policy interventions that might ‘nudge’ or ‘push’ people and organisations in particular directions, to hard legal provisions that more forcefully direct conduct and behaviour. An understanding is needed, therefore, of how public health practice may both be facilitated by legislation as well as constrained by legal, political, and social standards that prioritise competing values, such as individual or economic liberty. This book considers the importance of different modes of governance to public health activity; their intrinsic limitations; and the constraints that legal and political rules, principles, and norms can impose on the advancement of public health agendas.

It is striking that there are not already more legal textbooks in this area.² Textbooks on health care ethics and law abound, yet there is a remarkable dearth of similar works with a focus on public health.³ The ethical provision of health care is clearly a crucial component of the state’s responsibility for health, and it is therefore proper that health care law should be the subject of so much attention. But, within the ethico-legal literature, there are equally important, yet much less comprehensively addressed, questions both about the provision of a sound public health infrastructure, and concerning the basis and scope of a defensible political response to the social determinants of health.⁴ Notwithstanding that textbooks on health care law often include a limited discussion of public health,⁵ it is particularly surprising that there are few dedicated public health law texts because there are especially strong and important roles for governance in the sphere of public health. Throughout this work, we relate our discussion of public health law to three spheres of public health responsibility: systems of health care, the public health infrastructure, and the wider social determinants of health. In brief, we understand these core public health functions respectively as:

• Systems of health care: government has a core responsibility to ensure that people have access to a health care system, in particular to respond to conditions of ill health. In the context of English law,⁶ this is explicit in the overarching responsibility of the Secretary of State for Health to promote a comprehensive health service that will improve people’s physical and mental health through prevention, diagnosis, and treatment of illness.⁷
• Public health infrastructure: government has a core responsibility to provide wider infrastructural conditions that are necessary for good health – for example, in assuring a sanitary environment (e.g. with good sewerage systems, provision for proper waste disposal). In the context of English law, such matters fall within the purview of various sectors and levels of government, with roles for different departments in both central and local administration.⁸
• The social determinants of health: government has a core responsibility, through understandings generated in social epidemiology and related disciplines, to consider and respond to insights into the health impacts of our social environments. In the context of English law, this might be related in part to obligations to reduce health inequalities⁹ and in part to wider concerns about the discharge of public health duties in light of concerns for social justice.¹⁰

Beyond governmental responsibilities, the advancement of ‘public health’ has been taken to embrace also the activities and responsibilities of private actors. Thus, without clarification, there is a risk of misunderstanding when people use the term ‘public health’.¹¹ In this book, we adopt a broad understanding of public health activity, and in the sections that follow, we set out how we conceive the field, and why. It will become apparent that the collective activity of public health requires the sorts of coordination that necessarily invite different forms of state intervention or oversight.¹² In other words, an understanding of public health ethics and law is essential to a full understanding of public health.

We will describe, furthermore, how a great deal of potential public health activity sits in the shadow of the ‘prevention paradox’, outlined by Geoffrey Rose.¹³ This includes the observation that much of the collective burden of disease in the general population is borne by people who, before the onset of their illness, would be classed as having relatively low risk. Despite being at low risk individually, they contribute substantially to overall incidence because they are much larger in number than the minority who are at high risk. This may make it hard to achieve major gains by incentivising individuals towards ‘healthier living’, since, amongst the ‘low-risk’ people who generate the majority of cases, individual benefits will be minimal.

The prevention paradox presents a particular challenge to governance for population health. Reduction of salt intake, for example, has demonstrable health benefits if followed across a low-risk population, but it will not obviously benefit any individual member of that population. So how (if it all) do we establish that, as a matter of public policy, consumption of salt should be reduced and, from there, develop viable regulatory measures to achieve that goal? Throughout this book, we will explore in depth the sorts of issues that these two questions raise but note immediately the logical importance of having means of effecting changes in behaviour where individuals acting alone may not be motivated to alter their lifestyle. Coordinating mechanisms peculiar to law, and to governance more widely, stand centre stage.

To come to a definition of public health that is pertinent to our study, we first consider two preliminary questions. In section 1.2, we explain how the goals of public health might be approached. In doing this, we highlight the particular insights that can be achieved by studying populations, and the distinctive reasons for targeting health measures at populations. Then, in section 1.3, we outline approaches to understanding of the field from the perspective of public health ethics and law. Next, we come to a definition of public health, setting it in the context of those offered by three authoritative sources: the Faculty of Public Health (FPH), the UK Government (with particular reference to Public Health England [PHE]), and the World Health Organization (WHO). In section 1.5, we contextualise our broad definition of public health within critical discussions of the field, and in section 1.6, we emphasise key areas of focus, key approaches, and key stakeholders, all of which fall under our spotlight throughout the book.

1.2 Public health approaches: populations and institutions

Our route to characterising public health as a broad endeavour is founded on an analysis of the concerns that motivate contemporary interest in the field.¹⁴ We do not suggest that there is a universal consensus amongst practitioners, researchers, policy-makers, and theorists on the exact scope of public health.¹⁵ But there is a general recognition that populations stand at the centre of public health, and this is especially so in two important ways. First, public health research builds on understandings derived by reference to health within and across different populations; the focus is on groups of people, rather than just individuals.¹⁶ Second, public health policies and interventions generally operate through collective measures, which target populations. That is to say, when it comes to implementation, public health is about shared responsibility for health and about aiming to improve health through collectively organised means.¹⁷ A corollary of this latter point is that, as well as identifying ‘populations’ as a core interest, there is a strong focus on the roles and legitimacy of legal, political, and social institutions. Because public health practice requires collective interventions, we need to understand how institutions might effect different measures and how to assess the legitimacy of their doing so.

To flesh out this point, it is useful to begin by considering Geoffrey Rose’s analysis in his celebrated paper ‘Sick Individuals and Sick Populations’.¹⁸ In that work, Rose outlines how epidemiological research – research that examines how health compares within and across different populations and that aims to understand causes and effects of population health phenomena – affords insights distinct from those offered by clinical medicine and those available when only individuals or a single population are studied. In beginning to explain how and why these insights contrast, Rose says:

If everyone smoked 20 cigarettes a day, then clinical, case-control and cohort studies alike would lead us to conclude that lung cancer was a genetic disease; and in one sense that would be true, since if everyone is exposed to the necessary agent, then the distribution of cases is wholly determined by individual susceptibility.¹⁹

In other words, to reach our current understanding of the health impacts of smoking tobacco, an approach was required that could compare two populations – smokers and non-smokers. It was only by that method that we could move towards a proof that smoking tobacco causes disease.²⁰

Drawing out his point, Rose emphasises the importance of looking, not just for the causes of individual cases of disease, but also for reasons why the frequency of disease varies between different populations. Here, his concern takes us beyond asking why certain individuals suffer ill health, to looking at why one entire population exhibits a higher rate of a particular disease than another entire population. An example that Rose uses to demonstrate the difference between the population and individual perspective concerns levels of serum cholesterol.²¹ If we look only at determinants of differences in cholesterol levels within a population, he argues, we can observe individual characteristics (e.g. genetic constitution) that explain variation. But these do not necessarily explain why one whole population – say, men in Finland – has higher average levels of serum cholesterol than anoth...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• Introduction
• PART I Foundations
• PART II The field of public health law
• PART III Concluding reflections
• Index