public health law th tulchinsky md mph braun school of public health december 2003

Public Health LawPublic Health Law

TH Tulchinsky MD MPHTH Tulchinsky MD MPH

Braun School of Public HealthBraun School of Public Health

December 2003December 2003

What is LawWhat 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 ExampleSources 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 LawTypes 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 LawWhat 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: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

IntroductionIntroduction

• 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 healthWho 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

GovernmentGovernment

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 RegistrationsPermits, 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, 2nd Edition. American Public Health Association. Washington DC: APHA, 1990