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Public Health Law and Ethics Study Guide I

Tools: law/regulation/litigation, working with the constitutional framework of the three branches of government and within a mechanism of check and balances 

PUBLIC HEALTH LAW & ETHICS Public Health society’s obligation to assure the conditions for the people’s health Mission: promote physical/mental health; prevent injury, disease, and disability Functions: assess community health needs; develop policies; assure the services necessary for community health Jurisdiction: immediate risk factors such as infectious disease control; more distant social factors such as discrimination and socioeconomic status  Individuals can do much to be healthy but there are health factors beyond their individual control  Implies mutually shared obligations between individual members and society as an institution Collective entities local, state, and federal governments Focus: health of populations rather than health of individuals  Responsible for healthy populations  Have to meet the needs of the collectivity Reach of PH: identify, reduce, eliminate immediate and more distant factors for injury and disease Dilemmas:  Broad focus entails economic redistribution/social reconstructing/advocacy  Narrow focus entails reliance on science, research, and the credibility derived from their objectivity  Preservation of the public health is one of the first goals of government Enforcing law to secure conditions for public health by:  Influencing norms for healthy behavior  Identifying/responding to health dangers  Setting/enforcing health standards

Medical ethics has tended to focus on the individual rather than the group in the healthcare setting Ethics of Public Health – ethical dimensions of public health professionalism grounded in the fiduciary (trusting) relationship of professional to society in the pursuit of the common good Ethics in Public Health – ethical dimensions of the PH enterprise; the moral standing of the populations health; the trade off between collective and individual good; fair allocation of benefits and burdens Advocacy Ethics – serves the interest of populations, particularly the powerless/oppressed; approach is pragmatic (sensible) and political (social justice) Human Rights International Law: Bill of Human Rights, entailing civil, political, economic, social, cultural considerations Declared Rights: International Covenant on Civil and Political Rights (ICCPR) Negative rights securing a sphere of protection from government restraint – prohibition of slavery/torture/freedom of religion/etc.

Declared Rights: International Covenant on Economic, Social, Cultural Rights (ICESCR) Positive rights duties of the state to provide services – social security/education/equal pay for equal work/etc.

Function of International Declarations: declare what rights are and provide for the circumstances within which they are recognized and implemented Function of Ethics regarding human rights: determine what rights are in the first instance, their meaning, purpose, and warrant Human Rights in Public Health Practice: health as a human right suggests that states have an obligation to protect, respect, and honor the entitlement Rights commodities that have the distinctive moral consequence of constituting a domain of entitlement Consequences of Rights  Entail a particular moral relationship between the right and duty holder – what might have been a matter of moral

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indifference now becomes a matter of unavoidable moral consequences They justify actions so no further explanation of one’s actions is necessary Create and “area” of reasonable expectations within which the individual and society can relate to each other in a morally responsible way

DOING ETHICS Ethics study of standards of behavior (Webster) Evaluates human behavior: What is ought to be done, what is ought not to be done Ethics is indicated by the word ought: logical ought, prudential (showing forethought) ought Ethical ought  Unconditional – honesty for its own sake; because unconditional, different from prudential ought  Imperative – must be done; because imperative, different from logical ought Different from:  Mortality – social practices/guidelines embodying good/bad conduct (custom, culture, religion)  Prudence (cautiousness) – enlightened self interest  Law – societal mechanism translating morality into guidelines/practices, along with stipulation of punishment fro infractions Descriptive – historical, sociological, anthropological commentary Meta – critical analysis of ethics itself Normative – determination of the good/ the bad Forms of judgment – possible, reasonable, appropriate – indicate that behavior is characterized by obligation/responsibility; entailing holding responsible, praising, blaming – ethically accountable The use of “good”  Not descriptive but prescriptive (accepted by long usage or the passage of time)

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‘Good’ “never intended to be a description of anything; it was from the start assumed to be an injunction to do something”

Socrates’ 3 principles:  Do no harm  Keep one’s promises  Obey one’s parents/teachers Method of arguing:  Identifies the principles on which to set his major premise  Establishes his minor premise – a statement of fact combined with an application of the 3 principles Syllogism:  Major premise – do no harm  Minor premise – I will harm society by escaping Socrates working with a combination of the first order principles – obey the state; second order principles – do no harm, keep promises, obey parents  The former being derived from the latter Argument: if p (socialized medicine) then q (communist), if q then r (kill people), therefore if p then r  Argument is valid  Since premises are not true, no guarantee the conclusion is true  Valid argument guarantees truth of conclusion only if premises are true Important distinctions  Moral/ethical interchangeable with right/good  Moral judgment need not mean a good judgment; may mean a judgment pertaining to ethics/morals  Non-moral judgment (terms like good/bad; right/wrong) pertains to things distinct from persons/their behavior, such as cars (good); experiences (bad); directions (wrong) Normative ethics study of ethical action, branch of philosophical ethics that investigates the set of questions that arise when considering how one ought to act, morally speaking THE PUBLIC HEALTH FRAMEWORK

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PH consists in the prevention and reduction of morbidity/mortality Screening program the ratio of the programs benefits to harms where…  Harms/benefits refer to impact on morbidity/mortality of a community I.e. the good of the community 

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Framework is necessary but not a sufficient condition for assessing the acceptability of a screening program An acceptable ratio is one where the balance between harms and benefits favors benefits

9 requirements for establishing a screening program:  An important PH problem  An accepted treatment for condition when detected  Facilities for diagnosis and treatment  Condition should be recognizable – latent/early symptomatic stage where detection can be beneficial  Suitable screening procedures  Screening procedures acceptable to populations being screened  Natural history of condition understood  Agreement as to who will treat those screened as positive  Costs for 1) case finding, 2) diagnosis, 3) treatment economically balanced in relation to possible expenditures in medical care in general  Only when screening procedure has been assessed as satisfying these 9 criteria can we make an ethics assessment of the procedure  Choice and analysis of behavior guides can be controversial. Therefore, decision to implement a screening programs calls for a balance among the values autonomy (self government), beneficence (welfare of participant as goal), and justice  With the understanding that the more these programs challenge ethics requirements (autonomy, beneficence, justice), the greater the need for the program in question to satisfy PH criteria

SICK INDIVIDUALS AND SICK POPULATIONS Determinants for individual cases – “Why did this patient get this disease at this time?” Could it have been prevented?

Central ethos (accustomed behavior) in traditional medical practice is the acceptance of responsibility for sick individuals  In epidemiology, case control models are used to discover the difference between sick and healthy individuals  Basis of many cohort studies is the search for the “risk factors” which identify certain individuals as more susceptible to a disease  Then we test these risk factors to see if they are causes, explaining why some get sick and suggesting possible prevention procedures  Applied to etiology (origin) – this individual bases procedure entails the use of relative risk (risk in exposed individuals relative to risk in non-exposed individuals Problematic: this approach to search for causes must assume a difference of exposure to the risk within study population Determinants for Population Incidence Rate  To understand the difference between determinants for individual cases vs population incidence, need to recognize two kinds of etiological questions  Causes of cases – Why do some individuals have hypertension?  Causes of incidence – Why do some populations have much hypertension while other populations have little?  To find determinants of prevalence and incidence rates, study characteristics of populations, not individuals  Look at mean values for saturated fat consumption vs cholesterol level and coronary heart disease  Case-control/cohort studies were able to determine the main determinants of population differences over time  Tendency for genetic factors to dominate individual susceptibility but they explain little about incidence  Most non-infectious diseases are of unknown cause  While we know a lot about the personal characteristics of individuals susceptible to

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them, we do not know the determinants of their incidence rate The causes of incidence are not inevitable and if we knew them we might be able to control them Incidence rate will come from indicators of difference between populations or changes within populations over time “High risk/Individual based” approached is the traditional medical approach to prevention if physician is responsible for someone who is sick today, then natural to accept responsibility for someone who may be sick tomorrow Advantages  interventions molded to fit individual need, motivation factor is high, cost effective, more favorable ratio of benefits to burdens Disadvantages  Screening can be difficult/expensive Discovers larger numbers of “borderliners” at increased risk but lacking appropriate treatment to reduce risk

Population based approach is designed to control the determinants of incidence, lower mean level of risk factors, shift whole distribution of exposure in favorable direction Advantages  Behaviorally appropriate based on society’s norms of behavior  Seeks removal of underlying causes of disease Disadvantages  Offers small benefit to the individual while imposing considerable burden since most individuals will be fine without the intervention Need to distinguish two approaches within the overall population based approach:  First: interventions to restore biological normality by removing abnormal exposures (smoking, air pollution)  Second: interventions that, while leaving in place underlying causes of incidence, consist in protective measures (immunization, exercise)

Of the two, those advocating protective measures have the task of demonstrating their safety/ efficacy FEDERALISM AND THE PUBLIC HEALTH Federalism the distribution of power between federal and state government  Justice O’Connor states the Constitution divides authority between federal and state governments for the protection of individuals  Tussman “The government’s concern for the individual is not to be understood as a special concern for this or that individual but rather a concern for all individuals?”  Robert Bellah’s terms the first language of American politics – political individualism?  Blackstone’s understanding “The public good is essentially interested in the protection of every individual’s private rights  Second language of American politics embodied in the constitutional tradition in which the common good refers to the welfare of individuals considered as a group, or the commonwealth where members have shared commitments to each other  Harm principle  Narrow Paternalism  John Rawls’ notion of justice (the fair treatment of equals) as fairness?  Rawls’ notion is based on another – that of the social contract is designed to secure in a fair manner basic liberties and opportunities and to permit inequalities only when they work to the benefit of those most disadvantaged Gerwirth’s Principle of Generic Consistency (PGC) 1. Ethics is not a matter of variable personal preferences or social conventions about what is good 2. Rather, ethics is based on a stable rational foundation which Gerwirth refers to as the necessary condition of human action i.e. freedom as the necessary condition of moral (responsible) behavior and well being as the formal purpose of moral behavior  According to Gerwirth, every actual/prospective agent must logically hold

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that as the subject of human action, they have the right freedom and wellbeing  This argument results in the principle of equal/universal human rights Gives rise to the Community of Rights which secures  A communitarian conception of human relations  Relations of mutual assistance  Social solidarity and essential expressions of human equality PGC rights involve claims to protection of individual interest but also requires that persons as members of community of rights act with proper regard for the interests of all other persons Human rights are had by all humans and had against all humans Government’s regulatory power (police power) treat health/safety as a shared need of the community; subordinate the market, property, and individual liberty to the protection of compelling community interest This amounts to the combination of: social contact, classic “republican thought”, Judeo/Christian/Islamic notions of covenant Private interests and rights are protected by political association (community membership) The result is: A common citizenship that despite diversity and divergence of interests presumes an underlying shared set of loyalties and obligations to support the ends of the health and safety are central This is Walzer’s notion of communal provision in which  Disease is recognized as a plague  But since it is beyond the resources of any individual, requires the government to step in Once begun, the communal provision is subject to additional ethics conditions Distribution in ways that respects their membership (distributive justice) To each person: an equal share, according to individual need/persons rights/individual effort/social contribtution/merit