#15654 - Public Health I - Medical Law

Public Health

a) The idea of ‘Public Health’

Historically traces back to John Snow and the cholera crisis in London, and has undergone significant change throughout the 20th century as a result of three main factors: (1) modern change in mortality causes and mortality rates; (2) longer life spans, resulting in greater emphasis on illness management as opposed to death prevention; and (3) shifting conceptions of health from being ‘disease-free’ to being ‘illness-free’. Taken together, this resulted in shifting conceptions of medical laws.

Most definitions of public health share the premise that the subject of public health is the health of populations—rather than the health of individuals—and that this goal is reached by a generally high level of health throughout society, rather than the best possible health for a few. Verweij and Dawson’s approach conceptualises public health as ‘collective interventions’ that aim to promote and protect the health of the public. Within their conceptualisation are the following aspects:

public health is focused on populations (not just individuals);

much public health work is preventive rather than curative; and

most public health improvements cannot be brought about by individuals on their own: the attainment of public health ends requires collective efforts.

Why is it then that ‘Public Health’ is under appreciated both publicly and politically? Gostin raises the following reasons: (1) the rescue imperative - we like to save lives with names, not statistical lives; (2) the technological imperative - public health solutions less appealing than genetic or high tech solutions; (3) the invisibility of public health - when it works, we don’t notice it; and (4) the culture of individualism - society values personal goods over public goods more these days.

b) The scope of ‘Public Health’

A. Epstein’s Approach

Scholars and practitioners are conflicted about the “reach,” or domain, of public health. Some, like Epstein, prefer a narrow focus on the proximal risk factors for injury and disease. This has been the traditional role of public health—exercising discrete powers such as surveillance (e.g., screening and reporting), injury prevention (e.g., safe consumer products), and infectious disease control (e.g., vaccination, partner notification, and quarantine). In favour of this approach, Epstein argues that:

There is no relevant market failure for public health to correct - the ‘old’ public health was aimed at solving issues which bargaining and the common law were not suited to solve e.g. disease control. Chronic diseases like obesity etc. should not be within the domain of public health because they do not generate the same kind of market failure that infectious diseases do. Accordingly, regulation of socio-economic aspects of society under the umbrella of ‘public health’ is not appropriate.

Counter: (1) If market failure is defined differently (i.e. a different comparator model is adopted), then the argument could be made for regulation of obesity etc.; and (2) even if Epstein’s model of market failure is adopted, there needs to be reason for why obesity is not considered a market failure (because from the looks of it, the market is not able to internalise the issue). Surely a deepened understanding of the causes of obesity show that some factors cannot be managed by individuals alone acting through private transactions; and (3) his argument based on market failure begins with a baseline model of a market which is supplanted by moral premises that are not justified e.g. Epstein takes aim at unprotected and risky sex, but not consumption of risky unhealthy foods, seeing the former as a kind of market failure, but not the latter.

The additional regulations result in decreased social welfare - the ‘new’ public health has a wider scope, which undermines the creation of opportunity and wealth by over-regulating areas which need not be so strictly regulated, creating moral hazards, and diverting resources from other areas. For example:

in the quarantine and AIDS context, regulations are borderline overkill at the moment, treating AIDS as a contagious disease, when it is not. Specific AIDS anti-discrimination norms, whilst capable of helping people while they are down, has the effect of cross-subsidising the cost of engaging in risky behaviour, and preventing people from avoiding AIDS carriers. The provision of antibiotics to AIDS sufferers results in there being a wider window of time during which the virus can spread and/or develop immunities.

in the vaccination context, the modern legal position re negligence and product liability has resulted in an increase in the price of vaccines, and a concomitant reduction in the availability of vaccines.

in the governmental regulation context, where an increased focus on illness management has resulted in the adoption of policies that private insurers would never even consider, and the provision of treatment which may be wasteful (e.g. end of life care).

Counter: (1) Does regulation necessarily mean a decrease in welfare? In making this claim, is Epstein discounting the new information we have learnt in modern times about the socio-economic causes of diseases? If one were to take those into account, would there still be a perceived decrease in welfare? Surely an epidemiological change in health care concerns requires a corresponding change in public health ethics; and (2) in the context of public health, is it necessary or appropriate to measure welfare in an economic/monetary sense?

One general criticism of Epstein’s approach is that he ignores the complex scientific and political causalities at play when it comes to public health policy making. He thinks something is either a cause of something, or not, and that policymakers should intervene or restrain accordingly. An example is his acceptance of social factors as causes of the AIDS epidemic, in conjunction with his dismissal of their relevance for obesity and its health consequences. “Sinful” bathhouses, excesses of “associational freedom,” and failure of monogamous commitment are causal factors and appropriate targets of legal intervention, he holds. But corporate promotion of fattening foods and couch potato habits is not responsible for obesity (in either the scientific or legal sense); individuals bring it upon themselves, through their consumptive choices.

B. Gostin’s Approach

Others, like Gostin, prefer a broad focus on the socioeconomic foundations of health. Those favouring this position see public health as an all-embracing enterprise united by the common value of societal well-being. Similarly, the field is interested in “social capital” because social networks of family and friends, as well as associations with religious and civic organisations, are important factors in individual wellbeing and community functioning. In favour of this approach, Gostin argues that:

Theory of human functioning - health is an intrinsic and instrumental value for individuals, communities and entire nations. People aspire to achieve health because it is foundational to so many of the other things people want to achieve in life, both individually, and as a community.

Counter: (1) People can have just as fulfilling lives when suffering from disability; and (2) Although good health underlies many other goods, other factors underlie good health, meaning it is not as foundational as made out to be. Both of these are fairly weak counters because (1) every person strives for their best possible health, even in face of ailment, and (2) whatever factors are identified as underlying good health ultimately feed from a necessary base of good health to begin with. One may need to concede that good health is not the only foundational aspect, and that it is sustained via other aspects which operate in tandem.

Theory of democracy - people form governments to protect them against natural and manmade hazards, things which they cannot secure alone (hence, national defence, security and welfare). Public health is a classic case of a good which cannot be secured by individuals alone but which all individuals in a community have a vested interest in, and so the government acts as an agent to solve the collective action problem.

Counter: (1) Just how far does the theory of democracy take you down the path to justifying public health intervention, or the broad definition of public health? Why does the theory of democracy promote this broad version of public health as opposed to the narrow Epstein version?

Ultimately, the field is interested in the equitable distribution of social and economic resources because social status, race, and wealth are important influences on the...