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

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

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

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

Types of Law: Torts –Tort (a civil wrong); several different types Medical malpractice is a type of tort (a form of negligence) –Product liability

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

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

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

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

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

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

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

Public Health Law as Branch of Administrative Law Laws to fund Administrative machinery to enforce law FDA, EPA, DHHS Other Dep ts e.g. Agriculture, Education Inter departmental Inter governmental cooperation

Who is responsible for public health? Government? Health care and public health professionals? Individuals? Community?

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 Government

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)

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

Control of Mental Illness Involuntary commitment Voluntary commitment Emergency commitment Rights of committed persons Practices and procedures

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

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

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 Licensing Health Facilities

Searches and Inspections Warrant for inspection Standards for inspection Authority for inspection Exceptions Exclusions Use of evidence Suggested practices

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

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

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

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

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

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 can t be sued for damages

Legal and Administrative Techniques Obtaining information, questionnaires, reports and records Administrative hearings

Role of Public Health Officer in Development of PH Legislation Advocacy Expertise Process

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

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