John Q. Wong, MD, MSc28 July 2009

Gostin LO. Public Health Law: Power, Duty, Restraint. University of California Press, Canada: 2000.

Theory and definition of public health law (PHL)

Systematic evaluation of public health regulations

Evaluation of the Philippine Tobacco Regulation Act

Medical jurisprudenceLegal aspects of the application of

medical and surgical knowledge to individuals

PHL is the study ofThe legal powers and duties of the state

To assure the conditions for people to be healthy 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 protection or promotion of community health

Government Populations Relationships Services Coercion

GovernmentResponsible for PH

PopulationsFocus of PH

RelationshipsBetween the state and the populationBetween the state and individuals who

place themselves or the community at risk

ServicesProvision of population-based services

grounded on the scientific methodologies of PH

CoercionPower to coerce individuals and

businesses for the protection of the community rather than relying on an ethic of voluntarism

Primacy of government in the constitution

Obligations of government Governmental health regulation in

history and practice

Medicine Why did this patient get this disease at this time? Example

Causes of death are cancer, heart disease, CVD, and pulmonary disease

PH What can we, as a society, do collectively to

assure the conditions for people to be healthy? Example

Causes of death are environmental, social, and behavioral factors

Benefits and burdens placed by government on legally protected interestsAutonomyLibertyPrivacyProperty

Mission Core functions Essential services Leading indicators

Protecting and preserving community health is not possible without constraint of a wide range of private activities

Private actors have incentives to engage in behaviors that are personally profitable or pleasurable but may threaten other individuals or groups

Examples Individuals with STDs Polluting industries Unsafe or unhygienic products

Paradox To act affirmatively to promote the health of the

people But cannot unduly invade individuals’ rights in the

name of the communal good Overreaching regulation

Minimal health benefit with disproportionate human burdens

Tension Voluntarism and coercion Civil liberties and public health Discrete (or individual) threats and aggregate

health outcomes

‘That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others…’

Public health activity Public benefits Private interests/ rights

Prohibition of behavior - smoking in public places

Protect health and safety of person or others by restricting risk behaviors

Personal autonomy and freedom of action

Product design - product (cigarettes) liability under tort law

Prevent injuries by regulation or incentives for safer product design, and compensate injured persons

Freedom of contract (manufacturer-consumer), business interests, property uses, consumer costs

Informational constraints - labeling requirements

Restrict content of commercial messages that encourage harmful behavior, provide consumer information to avoid hazards

Freedom of speech, freedom of press, business and property interests

Public health activity

Public benefits Private interests/ rights

Youth access restrictions - cigarettes

Reduce health and safety risks among children and adolescents

Autonomy of youth, spill-over effects in denying access to adults

Taxation - cigarettes

Reduce demand for hazardous products by price increases, create disincentives or incentives to promote healthier behavior

Consumer costs, business and property interests, and possible fairness problem with regressive taxation

Risk to othersthe ‘harm principle’

Protection of incompetent persons ‘best interests’

Risk to selfSelf-regarding behaviorMotorcycle helmets, gambling

prohibitions, fluoridation of drinking water

Nature of the risk Duration of the risk Probability of harm Severity of harm

Inverse correlation with probability of harm

Social valuesShould popular judgment trump science?PH should account for traditional values of

Voluntarism Personal benefit Fair distribution of risk

Risk-risk trade-offsDecreasing one risk increases anotherExamples

Chemical disinfection reduce risks of water-borne infection but increase risks of cancer

Universal precautions in hospitals decrease risks of blood-borne infections but increase costs and reduce access

Nuclear power regulation reduces radiation risk but increases hazards due to coal- or oil-based energy

Government should demonstrate, through scientific data, that the methods of regulation adopted are reasonably likely to achieve public health objective

Agency resources to devise and implement the regulation

Costs to individuals and businesses subject to the regulation

Lost opportunities to intervene with a different, potentially more effective, technique (opportunity costs)

Inordinate costs for small health benefitsLow cost-effectiveness

Regulation carried to illogical extremesGoing the last mile

Arbitrary selection of regulatory topicsRandom agenda selection

The least restrictive alternative Criteria

Invasiveness To what extent does it intrude on rights

Frequency and scope One person, a group, or an entire population

Duration How long is the infringement

Just distribution of benefits, burdens, and costs

RuleProvide services to those in need Impose burdens and costs on those who

endanger the PHAvoid under- and over-inclusiveness

Systematically evaluate the Philippine Tobacco Regulation Act using Gostin’s criteriaDraw a conclusion as to whether or not it is

a ‘fair’ law. Conclusion has to be supported by evidence.

Mechanics New groups3 pages, 1” margin minimum, Times New

Roman 12”, single spaceDue 5 Aug 2009 by email