Rethinking Public HealthRethinking Public Health

Edward P. Richards, J.D., Edward P. Richards, J.D., M.P.H.M.P.H.

Professor of LawProfessor of Law

Executive DirectorExecutive Director

Center for Public Health LawCenter for Public Health Law

University of Missouri Kansas University of Missouri Kansas CityCity

http://plague.law.umkc.edu/http://plague.law.umkc.edu/cphl cphl

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What Motivates ModernWhat Motivates ModernPublic Health?Public Health?

Social JusticeSocial Justice• Health People 2010Health People 2010

Integrated Delivery SystemIntegrated Delivery System• NIH Future of Public Health StudyNIH Future of Public Health Study

““Our Patients”Our Patients”• Unnamed State Health DirectorUnnamed State Health Director

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APHAAPHA

Vision: Healthy People in Healthy Vision: Healthy People in Healthy CommunitiesCommunities

Mission: Promote Physical and Mission: Promote Physical and Mental Health and Prevent Mental Health and Prevent Disease, Injury, and DisabilityDisease, Injury, and Disability

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Public HealthPublic Health

Prevents epidemics and the spread of Prevents epidemics and the spread of diseasedisease

Protects against environmental hazardsProtects against environmental hazards Prevents injuriesPrevents injuries Promotes and encourages healthy behaviorsPromotes and encourages healthy behaviors Responds to disasters and assists Responds to disasters and assists

communities in recoverycommunities in recovery Assures the quality and accessibility of Assures the quality and accessibility of

health serviceshealth services

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Essential Public Health Essential Public Health Services 1-5Services 1-5

• Monitor health status to identify community Monitor health status to identify community health problemshealth problems

• Diagnose and investigate health problems Diagnose and investigate health problems and health hazards in the communityand health hazards in the community

• Inform, educate, and empower people about Inform, educate, and empower people about health issueshealth issues

• Mobilize community partnerships to identify Mobilize community partnerships to identify and solve health problemsand solve health problems

• Develop policies and plans that support Develop policies and plans that support individual and community health effortsindividual and community health efforts

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Essential Public Health Essential Public Health Services 6 - 10Services 6 - 10

• Enforce laws and regulations that protect Enforce laws and regulations that protect health and ensure safetyhealth and ensure safety

• Link people to needed personal health services Link people to needed personal health services and assure the provision of health care whenand assure the provision of health care whenotherwise unavailableotherwise unavailable

• Assure a competent public health and personal Assure a competent public health and personal health care workforcehealth care workforce

• Evaluate effectiveness, accessibility, and Evaluate effectiveness, accessibility, and quality of personal and population-based healthquality of personal and population-based healthservicesservices

• Research for new insights and innovative Research for new insights and innovative solutions to health problemssolutions to health problems

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The Big Umbrella ProblemThe Big Umbrella Problem

Different Skills SetsDifferent Skills Sets Different Finance ModelsDifferent Finance Models Different Professional ParadigmsDifferent Professional Paradigms Different and Conflicting Legal Different and Conflicting Legal

AuthorityAuthority Different Political BaseDifferent Political Base

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Conflicting Legal AuthorityConflicting Legal Authority

Parens PatriaParens Patria Police PowersPolice Powers Criminal LawCriminal Law Individual Liberties LawIndividual Liberties Law

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Parens PatriaeParens Patriae

"Parens patriae," literally "parent of "Parens patriae," literally "parent of the country,”... It is the principle the country,”... It is the principle that the state must care for those that the state must care for those who cannot take care of themselves, who cannot take care of themselves, such as minors who lack proper care such as minors who lack proper care and custody from their parents.and custody from their parents.• Blacks Law DictionaryBlacks Law Dictionary

The King as FatherThe King as Father The Country as FamilyThe Country as Family

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Modern Parens Patriae Modern Parens Patriae PowersPowers

Child WelfareChild Welfare Indigent CareIndigent Care Wellness ProgramsWellness Programs Mental Health CareMental Health Care

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Why do Lawyers and Law Why do Lawyers and Law Professors Like Parens Professors Like Parens Patriae?Patriae?

Helping the DowntroddenHelping the Downtrodden Empowering the IndividualEmpowering the Individual Distrust of the StateDistrust of the State Lots of Money in Suing for IndividualsLots of Money in Suing for Individuals Not Much Money in Representing the Not Much Money in Representing the

StateState No Money or Private Practice in Public No Money or Private Practice in Public

Health LawHealth Law

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Police PowerPolice Power

Right of Societal Self-DefenseRight of Societal Self-Defense Right of the State to Protect ItselfRight of the State to Protect Itself Right of the State to Protect Its Right of the State to Protect Its

CitizensCitizens

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HistoryHistory

From English Common LawFrom English Common Law Core of Colonial GovernmentCore of Colonial Government Key Power Reserved to the StatesKey Power Reserved to the States The Key Public Health Law The Key Public Health Law

Doctrine until the 1980sDoctrine until the 1980s Still the Doctrine Used by the Still the Doctrine Used by the

CourtsCourts

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Police Power v. Parens Police Power v. Parens PatriaePatriae

The state has a legitimate interest The state has a legitimate interest under its parens patriae powers in under its parens patriae powers in providing care to its citizens who are providing care to its citizens who are unable because of emotional disorders unable because of emotional disorders to care for themselves; the state also to care for themselves; the state also has authority under its police power to has authority under its police power to protect the community from the protect the community from the dangerous tendencies of some who dangerous tendencies of some who are mentally ill.are mentally ill.• Addington v. Texas, 441 U.S. 418 (1979)Addington v. Texas, 441 U.S. 418 (1979)

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Philosophical DifferencesPhilosophical Differences

Parens PatriaeParens Patriae• The Individual Is FirstThe Individual Is First• Society is just the Sum of the Society is just the Sum of the

IndividualsIndividuals Police PowerPolice Power

• Ecological ModelEcological Model• Society is a Complex OrganismSociety is a Complex Organism

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Practical DifferencesPractical Differences

Parens PatriaeParens Patriae• Driven by Individual Medical NeedsDriven by Individual Medical Needs• Individual Lives Trump Statistical LivesIndividual Lives Trump Statistical Lives• Protect Yourself From DiseaseProtect Yourself From Disease• Informed Opt-Out AllowedInformed Opt-Out Allowed

Police PowerPolice Power• Driven by Community ProtectionDriven by Community Protection• Stresses Statistical LivesStresses Statistical Lives• Protect Others From DiseaseProtect Others From Disease

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Criminal LawCriminal Law

Subset of Police PowersSubset of Police Powers Moral/Religious OverlayMoral/Religious Overlay Prospective DeterrenceProspective Deterrence Core DifferenceCore Difference

• Allows Retrospective PunishmentAllows Retrospective Punishment• Special Constitutional ProtectionsSpecial Constitutional Protections

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Individual Liberties LawIndividual Liberties Law

Bill of Rights BasedBill of Rights Based• Limited Balancing of Individual vs Limited Balancing of Individual vs

Societal RightsSocietal Rights ExamplesExamples

• Privacy LawPrivacy Law• Tort LawTort Law• Informed Consent and other Medical Informed Consent and other Medical

Law DoctrinesLaw Doctrines

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The Physician-Patient The Physician-Patient RelationshipRelationship

Trust is FundamentalTrust is Fundamental Fiduciary ObligationsFiduciary Obligations

• Informed ConsentInformed Consent• Informed RefusalInformed Refusal• HMOsHMOs

Patient’s Interests are PrimaryPatient’s Interests are Primary• Drug Testing Pregnant WomenDrug Testing Pregnant Women• Involuntary CommitmentInvoluntary Commitment

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Administrative ConflictsAdministrative Conflicts

Personal Medical ServicesPersonal Medical Services• Very ExpensiveVery Expensive• The Demand for Services is without The Demand for Services is without

LimitLimit• The Providers are ExpensiveThe Providers are Expensive• The Emotional Pull is HighThe Emotional Pull is High

Contrast with Public HealthContrast with Public Health Resource CaptureResource Capture

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Medical Police ProblemMedical Police Problem

Public Health IssuesPublic Health Issues• Reporting, Contact Tracing, WarningReporting, Contact Tracing, Warning• Coercive ActionsCoercive Actions• Vital StatisticsVital Statistics

Criminal Law IssuesCriminal Law Issues• Child AbuseChild Abuse• Drug UseDrug Use

““Not On Our Patients” ProblemNot On Our Patients” Problem

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Skills Set ProblemSkills Set Problem

Why School of Public Health Do Not Why School of Public Health Do Not WorkWork• Too Many Different Skills to Train in One Too Many Different Skills to Train in One

Educational SystemEducational System• Academic and Grant Pressures Devalue Academic and Grant Pressures Devalue

Core Public HealthCore Public Health• Limits Admissions RequirementsLimits Admissions Requirements

MPH Tells You Almost Nothing About MPH Tells You Almost Nothing About Public Health KnowledgePublic Health Knowledge

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Community Support Community Support ProblemsProblems

Core Public HealthCore Public Health• Food, Water, Nuisance, Food, Water, Nuisance,

Communicable Disease ControlCommunicable Disease Control Indigent CareIndigent Care Drug Addicts and the Mentally IllDrug Addicts and the Mentally Ill Not Just Different, but ConflictingNot Just Different, but Conflicting

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War in the Big TentWar in the Big Tent

Health Directors who Do Not Health Directors who Do Not Believe in Public HealthBelieve in Public Health• Confusing Patient Interests with Confusing Patient Interests with

Public InterestsPublic Interests Individual Liberties Law is not Individual Liberties Law is not

Public Health LawPublic Health Law Undermines Agency AuthorityUndermines Agency Authority Increases Agency CostsIncreases Agency Costs

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Disaggregate Public Disaggregate Public Health ServicesHealth Services

Personal Medical ServicesPersonal Medical Services Core Public HealthCore Public Health

• Food and Water SanitationFood and Water Sanitation• Infectious Disease ControlInfectious Disease Control• Vermin, Animal Control, and other Vermin, Animal Control, and other

NuisanceNuisance WellnessWellness Injury PreventionInjury Prevention

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Rethink Schools of Public Rethink Schools of Public HealthHealth

Require Core Public Health Training Require Core Public Health Training in the MPHin the MPH

Concentrate on the Special Skills of Concentrate on the Special Skills of Public HealthPublic Health• Do Not Duplicate University Do Not Duplicate University

DepartmentsDepartments• Privilege the WorkersPrivilege the Workers

Do not Try to Save the WorldDo not Try to Save the World• Bring Public Health to MedicineBring Public Health to Medicine

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Focus on CommunityFocus on Community

Ecological ModelEcological Model Community as More than the Sum Community as More than the Sum

of Individualsof Individuals Duties, as well as RightsDuties, as well as Rights Use Fear ConstructivelyUse Fear Constructively

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Emerging Infectious Emerging Infectious DiseasesDiseases

Demand SurveillanceDemand Surveillance Case FindingCase Finding Swift Action in the Face of Swift Action in the Face of

UncertaintyUncertainty Protect Individuals Against their WillProtect Individuals Against their Will Must Sometimes Sacrifice Individual Must Sometimes Sacrifice Individual

Rights to Societal ProtectionRights to Societal Protection Same Issues in BioterrorismSame Issues in Bioterrorism

EID Control Depends on EID Control Depends on the Police Powerthe Police Power

How do We Restore the Police How do We Restore the Police Power to Public Health?Power to Public Health?