Introduction to Public Health Law

1
Introduction to Public Health Law
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Part I

• History of Medical and Public Health Science

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Paracelsus

• Philippus Aureolus Theophrastus Bombastus Von
  Hohenheim
• Early 16th Century
• Transition From Alchemy
• Experiments And Systematic Observations
• Antimony

4
Anatomy And Function

• Andreas Vesalius
• Mid 16th Century
• Accurate Anatomy
• William Harvey
• Early 17th Century
• Flow Of The Blood And Operation Of The Heart

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Edward Jenner

• Smallpox
• Major Killer
• Wiped Out The Indigenous Peoples
• 1798 Published His Book On Cowpox

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John Snow

• Cholera In London
• Broad Street Pump
• Proved Cholera Is Waterborne
• 1854

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Ignaz Philipp Semmelweis

• Childbed Fever
• Fellow Medical Student Died
• Controlled Studies
• 1849

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Louis Pasteur

• Scientific Method
• Germ Theory
• Vaccination For Rabies
• Pasteurization
• 1860s-1880s

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Foundation of Modern Surgery

• William Morton
• Anesthesia
• 1846
• Joseph Lister
• Antisepsis
• 1867-1880s
• Surgery Became Big Business
• Drove Development of Hospitals

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Infectious Diseases

• Kochs Postulates - 1880s
• Agent Must Be Present In Every Case
• Agent Must Be Isolated From The Host And Grown In
  Vitro In A Lab Dish
• Agent Must Cause Disease When Inoculated Into A
  Healthy Susceptible Host And
• Agent Must Be Recovered Again From The
  Experimentally Infected Host.
• Limitations

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Tuberculosis Control - 1900

• The Major Killer
• Koch And Pasteur
• Sanatoria
• Pasteurization Of Milk
• Disease Control Of Dairy Herds

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Drug Chemistry 1880s

• German/Swiss Dye Industry
• Bayer
• Hoffman La Roche
• Ciba

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Antibiotics

• Sulfa Drugs In The 1930s
• Penicillin
• Alexander Flemming 1928
• Purified By Chain And Florey In 1939
• World War II - Coconut Grove Fire (1942)
• Streptomycin 1944
• First Antituberculosis Drug
• Selman Abraham Waksman 1944
• (Coined The Term Antibiotic

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Post World War II

• Conquering Microbial Diseases
• Vaccines
• Antibiotics
• Chronic Diseases
• Better Drugs
• Better Studies
• Leukemia

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Part II

• Public Health Law and Practice

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Public Health in the Colonies

• Most of the population lived in poorly drained
  coastal areas
• Cholera
• Yellow Fever
• Urban Diseases
• Smallpox
• Tuberculosis
• Average Life Expectancy in cities was 25 years

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Public Health Law Actions in Colonial America

• Quarantines, areas of non-intercourse
• Inspection of ships and sailors
• Nuisance abatement
• Colonial governments had and used Draconian
  powers
• The Police Powers

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Police Power

• Police departments came later
• Power to protect the public health and safety
• Communicable disease control
• Sanitation
• Nuisance
• Drinking water

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Articles of Confederation

• In effect between independence and the
  ratification of the Constitution in 1789
• Left all powers to the states
• The states provided what support they wanted to
  the federal effort
• Did not work during the War
• Remember the stories about Washington's troops
  not having shoes?

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Public Health in the Constitution

• Federal Powers
• Interstate commerce
• International trade and travel
• War powers
• State Powers
• Powers not given to the federal government
• Police Powers

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Actions in the 1798 Yellow Fever Epidemic

• For ten years prior, the yellow fever had raged
  almost annually in the city, and annual laws were
  passed to resist it. The wit of man was
  exhausted, but in vain. Never did the pestilence
  rage more violently than in the summer of 1798.
  The State was in despair. The rising hopes of the
  metropolis began to fade. The opinion was gaining
  ground, that the cause of this annual disease was
  indigenous, and that all precautions against its
  importation were useless. But the leading spirits
  of that day were unwilling to give up the city
  without a final desperate effort. The havoc in
  the summer of 1798 is represented as terrific.
  The whole country was roused. A cordon sanitaire
  was thrown around the city. Governor Mifflin of
  Pennsylvania proclaimed a non-intercourse between
  New York and Philadelphia. (Argument of counsel
  in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41
  (1849))

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Is there a Federal Police Power?

• Constitutional Debate
• US Supreme Court says no, but ...
• Can the Feds do local disease control?
• CDC only comes in at the state's invitation
• Public Health is state and local
• Can the Feds require smallpox vaccinations?
• Invasion Clause?

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Limits of the Police Power

• Very broad
• Protect public health and safety
• Must be prospective
• Public health regulations are about preventing
  future harm
• Must be civil, not criminal
• The reason for the action, and not the results,
  determine whether it is criminal
• Confinement in jail
• Megan's laws and confinement of sexual predators

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Public Health as the First Administrative Law

• Among the first acts of Congress
• Public health service hospitals and quarantine
  stations
• State and Local Government
• Boards of Health - Paul Revere sat on the Boston
  Board of Health

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Part III

• Core Public Health Functions

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Disease reporting

• No right of privacy
• No right to refuse reporting
• Can inspect medical records
• Child abuse and violent injury reporting
• Also extended to medical procedures, occupational
  illnesses, use of scheduled drugs, and other
  areas of public health concern

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Disease Investigation

• Contract Tracing
• Partner Notification
• Investigations of business and food
  establishments
• Public health data can be reported to the police,
  but it cannot be the basis of prosecution

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Mandatory treatment and restrictions

• Vaccination law
• Jacobson - no free riders
• No requirement for religious exception
• VD/STI/TB, others
• Can require testing or treatment
• Can hold in jail if you refuse
• Habeas Corpus is the remedy
• Many states have weakened these laws due to
  political pressure over AIDS

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Environmental Health

• Food sanitation, drinking-water treatment, and
  wastewater disposal
• Most public health orders are directed at
  environmental health problems.
• Two central legal questions
• When does the government owe compensation to the
  owners of regulated property?
• When can inspectors enter private premises to
  look for public health law violations?

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Vital Statistics

• Birth and death records
• Disease registries

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Part IV

• What are the legal tools to carry out these
  functions?

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Rulemaking - Public Health Regulations

• Legislature must delegate its power
• Why promulgate regulations?
• Gives direction to regulated parties
• Allow public participation
• Harmonize practices between jurisdictions
• Limits the issues if there is Judicial Review
• Can be overruled by the legislature

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When Agencies Make Decisions Adjudications

• How is an adjudication different from a rule?
• Specific facts and specific parties
• How is an adjudication different from a trial?
• Expert decisionmakers
• Agency makes the final decision so decisions are
  uniform (Current controversy in LA)
• Conflict of interests can be a problem

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Permits and Licenses

• Permits
• Licenses
• Rights for duties
• Issued on Set Criteria
• Conditioned on accepting regulatory standards
• Warrantless inspections

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Inspections

• Legally classified as an adjudication
• License and permit holders
• No warrant
• Administrative warrants
• No probable cause
• Area warrants
• Limits to administrative warrants
• Cannot be used to undermine criminal due process

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Enforcement Actions

• Civil fines
• Injunctions to stop dangerous activities
• Court orders to force compliance with public
  health regulations
• Criminal prosecution for disobeying a court orders

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The Advisory and Consultative Role

• Public health is about prevention as well as
  enforcement
• Opening a new restaurant
• Designing food handling area
• Training kitchen personnel
• Managing day to day problems
• The major role of the CDC

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Acting in an Emergency

• Power expands with necessity
• Courts do not block emergency actions
• Knowing what to do is what matters
• Emergency powers laws are easy to pass, but do
  not solve resource and expertise problems
• Law matters a month after
• The more laws you pass, the more loopholes you
  can create

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Part V

• The Politics of Public Health

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Political Control of Agencies

• Agency heads are political appointees
• Federal independent agencies are different
• Some states have boards of health, but not much
  improvement
• Agency goals are subservient to other political
  agendas
• Salary is also a political control

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Impact of Political Control

• Feds
• Conformation battles at the federal level
• Can still get talented people at the top
• More problems at midlevel, esp. for experts
• States
• Salaries limit expertise in many positions
• Very difficult to get real experts at the top
  because of improper political pressures

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Impact on Public Health

• Future of Public Health
• IOM 1988
• No career track for high level public health
  professionals
• Fired for political disputes
• No pension rights, no severance, not contracts
• You cannot stay in public health if you protect
  the public health
• Do agencies have expertise any more?