Public Health Law

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Public Health Law

• TH Tulchinsky MD MPH
• Braun School of Public Health
• December 2003

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What is Law?

• A system of rules, regulations, orders that
  governs the behavior of a society
• Law reflects society, although laws often do not
  keep up with events many laws are passed
  after-the-fact in response to events

J Overall, Tulane Univesrsity
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Sources of Law US Example

• Constitution supreme law of country
• Federal Legislature
• Federal Judicial Decisions
• Federal Executive/Presidential Orders (limited
  subjects)
• Federal Administrative Rules and Regulations
  (executive agencies)
• In the US, there are also 50 state constitutions,
  legislatures, and court systems, and agencies

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What are the Types of Laws?

• Criminal
• Felonies and Misdemeanors
• Felony jail and/or monetary fines
• Misdemeanor shorter jail time and lower
  monetary fines
• Note corporations cannot be sent to jail or
  prison owners, board members, and officers can
  be

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Types of Law Torts

• Tort (a civil wrong) several different types
  Medical malpractice is a type of tort (a form of
  negligence)
• Product liability

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Types of Law Contracts

• Contract is an agreement reached between/among
  two or more parties
• It governs the relationship between/among the
  parties
• To be enforceable in a court of law, the contract
  must meet legal requirements of contract law
• Purpose of contract must be legal

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Types of Law Administrative Law

• This has become a very important area of law in
  the US
• Agencies/departments within the executive branch
  of government have more and more power
• They set rules and regulations, enforce them, and
  interpret them
• Can order both civil and criminal penalties

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What is Public Health Law?

• In the past, there was no clear definition of
  this term in the US
• Working now to update and reform laws in the
  public health arena and to reach clearer
  definition
• 1988 IOM study (The Future of Public Health)
  law is essential to the public good
• But study questioned the soundness of US public
  health laws

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Public Health is Based on Law To

• Protect health of the population
• Stop the spread of disease
• Promote optimal conditions for health
• Protect the environment
• Provide services in general
• Provide services to specific groups in the
  population
• Financially assist and license development of
  health manpower, facilities under national
  standards
• Programs to assure quality of care

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Introduction

• Standards adopted by a legislative or an
  authorized administrative body
• Achieved by persuasion, financial incentives
• Ultimately depends on legal sanctions
• Allotment of funds is a legal method of providing
  or ensuring certain services are provided
• Appropriation of funds is a legal act of
  legislative bodies
• Public health officers may provide funds, or
  services and may take legal actions (sanctions)
  against those endangering the public health

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Powers of Public Health Officials and Procedures

• Powers granted, defined and limited by law
• Many laws, legal precedents affect public health
  law
• Public Health Codes collate the law
• Constitutional, statutory and case law defining
  the powers of the state and the local authority
• Administrative procedures and remedies
• Civil, criminal offences and remedies
• Laws governing voluntary not for profit
  associations, or private insurance mechanisms
  affect public health

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Constitutional and Legal Sources of Public Health
Powers

• Government constitutionally responsible for
  safety, health and welfare of the population
• Federal government
• State government
• Local government
• Regulation hierarchy of jurisdiction
• Financing grants-in-aid, Hill-Burton Act
• Conditions, standards, guidelines

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Public Health Law as Branch of Administrative Law

• Laws to fund
• Administrative machinery to enforce law
• FDA, EPA, DHHS
• Other Depts e.g. Agriculture, Education
• Inter departmental
• Inter governmental cooperation

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Who is responsible for public health?

• Government?
• Health care and public health professionals?
• Individuals?
• Community?

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Government

• US laws and regulations
• United States Code,
• Code of Federal Regulations, Federal Register
• State constitutions, codes (laws), rules, and
  regulations
• State laws cannot conflict with federal
• No laws can conflict with the federal
  constitution

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Public Health Law and a Bill of Rights

• Protect from undue interference with personal
  liberty
• Freedom of religion separation of church and
  state
• Freedom of speech, press and assembly
• Protect against unreasonable searches and
  seizures
• Privilege against self-incrimination
• Rights of accused persons
• Writ of habeus corpus
• Due process
• Rights of appeal (limited)

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Restriction of Persons

• Control of communicable diseases
• Reporting of specified diseases and conditions
• Compulsory examination
• Compulsory immunization e.g. on school entry
• Isolation and quarantine
• Compulsory hospitalization and quarantine
• AIDS, TB in homeless person

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Control of Mental Illness

• Involuntary commitment
• Voluntary commitment
• Emergency commitment
• Rights of committed persons
• Practices and procedures

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Permits, Licenses and Registrations

• State licenses or delegates the power
• Health professions e.g doctors, nurses
• Health facilities e.g hospitals, nursing homes,
  other
• Licenses and permits
• Under police powers and due process
• License powers as economic interests
• Restraint of trade

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Licensing Health Professions

• State regulates health professions
• Protect the public interest
• Professional,occupational licensure
• Restriction of supply e.g. specialists
• Set standards for qualification
• Disciplinary powers

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Licensing Health Facilities

• Institutional licensure
• Certificate of Need
• Hill Burton Act
• De-certification
• Mechanisms to grant, renew, suspend or revoke
  license
• License application
• License revocation and suspension
• Due process for license revocation
• Court review of denial of application

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Searches and Inspections

• Warrant for inspection
• Standards for inspection
• Authority for inspection
• Exceptions
• Exclusions
• Use of evidence
• Suggested practices

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Articles Endangering Public Health

• Embargo, seizure, condemnation, destruction
• Immediacy
• Requirements of notice
• Procedures
• Right to a hearing
• Disposition of goods seized
• Federal-state relations
• Suggested standards of practice and procedures

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Abatement of Nuisances and Dangerous Conditions

• Public nuisance
• Private nuisance
• Licensed activities as nuisance
• Statutory nuisance
• Remedies
• Summary abatement
• Orders cease and desist
• Liability of municipal corporations
• Suggested practices

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Injunction Court Orders Achieve Sustained
Compliance

• Court order to act or desist from a specified
  activity
• Befits situation and specifies action, penalty,
  time frame
• Common for water or air pollution, waste disposal
  site nuisances
• Used in failure to comply with administrative
  orders to abate

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Civil Sanction, Penalties, Cleanup Costs, Liens

• Civil law provides for collection of civil
  penalties, remedial or cleanup costs, and liens
  on properties
• Criminal and civil action may be done together.
• Fines from criminal action may be supplemented by
  civil penalties
• Clean Air Act, Clean Water Act, Toxic Substances
  Control Act, Solid Waste Act, Pesticide Act
  provide civil penalties 5-25,000 per day of
  violation
• Civil penalty is an economic penalty, which can
  include liability for cleanup e.g. hazardous
  substances
• Owners refusing to pay may have court lien placed
  on property

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Public Health and Criminal Law

• Common method of sanction
• Not truly criminal
• Misdemeanors fines or jail
• Often casually handled in courts
• Admission of guilt light punishment
• Not guilty plea trial
• Procedure is important for conviction
• Gradual acceptance of more severe sanctions, even
  jail
• Corporations tendency to heavy fines and even
  jail for corporate officers e.g for environmental
  crimes

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Public Health Officers Responsibility and
Liability

• Subject to the law
• Felony or misdemeanor for deliberate omission or
  falsification of evidence
• Removal from office
• Civil liability for damages from negligence
• Governments cant be sued for damages

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Legal and Administrative Techniques

• Obtaining information, questionnaires, reports
  and records
• Administrative hearings

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Role of Public Health Officer in Development of
PH Legislation

• Advocacy
• Expertise
• Process

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Summary

• Laws to regulate, administer and to finance
• Enforcement and regulation
• Safeguard individual rights
• Community rights and the public interest
• Due process
• Public health officer acts on behalf of laws
• Persuasion backed by power to enforce
• Civil and criminal law

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Source

• Grad FP. The Public Health Law Manual, 2nd
  Edition. American Public Health Association.
  Washington DC APHA, 1990