Introduction to Public Health Law

Part I

History of Medical and Public Health Science

Paracelsus

Philippus Aureolus Theophrastus Bombastus Von Hohenheim

Early 16th Century Transition From Alchemy Experiments And Systematic Observations Antimony

Anatomy And Function

Andreas Vesalius Mid 16th Century Accurate Anatomy

William Harvey Early 17th Century Flow Of The Blood And Operation Of The Heart

Edward Jenner

Smallpox Major Killer Wiped Out The Indigenous Peoples 1798 – Published His Book On Cowpox

John Snow

Cholera In London Broad Street Pump Proved Cholera Is Waterborne 1854

Ignaz Philipp Semmelweis

Childbed Fever Fellow Medical Student Died Controlled Studies 1849

Louis Pasteur

Scientific Method Germ Theory Vaccination For Rabies Pasteurization 1860s-1880s

Foundation of Modern Surgery

William Morton Anesthesia 1846

Joseph Lister Antisepsis 1867-1880s

Surgery Became Big Business Drove Development of Hospitals

Infectious Diseases

Koch’s Postulates - 1880s Agent Must Be Present In Every Case; Agent Must Be Isolated From The Host And Grown In

Vitro [In A Lab Dish]; Agent Must Cause Disease When Inoculated Into A

Healthy Susceptible Host; And Agent Must Be Recovered Again From The

Experimentally Infected Host. Limitations

Tuberculosis Control - 1900

The Major Killer Koch And Pasteur Sanatoria Pasteurization Of Milk Disease Control Of Dairy Herds

Drug Chemistry – 1880s

German/Swiss Dye Industry Bayer Hoffman La Roche Ciba

Antibiotics

Sulfa Drugs In The 1930s Penicillin

Alexander Flemming – 1928 Purified By Chain And Florey In 1939 World War II - Coconut Grove Fire (1942)

Streptomycin – 1944 First Antituberculosis Drug Selman Abraham Waksman – 1944 (Coined The Term Antibiotic

Post World War II

Conquering Microbial Diseases Vaccines Antibiotics

Chronic Diseases Better Drugs Better Studies Leukemia

Part II

Public Health Law and Practice

Public Health in the Colonies

Most of the population lived in poorly drained coastal areas Cholera Yellow Fever

Urban Diseases Smallpox Tuberculosis

Average Life Expectancy in cities was 25 years

Public Health Law Actions in Colonial America

Quarantines, areas of non-intercourse Inspection of ships and sailors Nuisance abatement Colonial governments had and used Draconian

powers The Police Powers

Police Power

Police departments came later Power to protect the public health and safety

Communicable disease control Sanitation Nuisance Drinking water

Articles of Confederation

In effect between independence and the ratification of the Constitution in 1789 Left all powers to the states The states provided what support they

wanted to the federal effort Did not work during the War

Remember the stories about Washington's troops not having shoes?

Public Health in the Constitution

Federal Powers Interstate commerce International trade and travel War powers

State Powers Powers not given to the federal government Police Powers

Actions in the 1798 Yellow Fever Epidemic

For ten years prior, the yellow fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New York and Philadelphia. (Argument of counsel in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41 (1849))

Is there a Federal Police Power?

Constitutional Debate US Supreme Court says no, but ...

Can the Feds do local disease control? CDC only comes in at the state's invitation Public Health is state and local

Can the Feds require smallpox vaccinations? Invasion Clause?

Limits of the Police Power

Very broad Protect public health and safety Must be prospective

Public health regulations are about preventing future harm

Must be civil, not criminal The reason for the action, and not the results,

determine whether it is criminal Confinement in jail Megan's laws and confinement of sexual predators

Public Health as the First Administrative Law

Among the first acts of Congress Public health service hospitals and

quarantine stations State and Local Government

Boards of Health - Paul Revere sat on the Boston Board of Health

Part III

Core Public Health Functions

Disease reporting

No right of privacy No right to refuse reporting Can inspect medical records Child abuse and violent injury reporting Also extended to medical procedures,

occupational illnesses, use of scheduled drugs, and other areas of public health concern

Disease Investigation

Contract Tracing Partner Notification Investigations of business and food

establishments Public health data can be reported to the

police, but it cannot be the basis of prosecution

Mandatory treatment and restrictions

Vaccination law Jacobson - no free riders No requirement for religious exception

VD/STI/TB, others Can require testing or treatment Can hold in jail if you refuse Habeas Corpus is the remedy

Many states have weakened these laws due to political pressure over AIDS

Environmental Health

Food sanitation, drinking-water treatment, and wastewater disposal Most public health orders are directed at

environmental health problems. Two central legal questions:

When does the government owe compensation to the owners of regulated property?

When can inspectors enter private premises to look for public health law violations?

Vital Statistics

Birth and death records Disease registries

Part IV

What are the legal tools to carry out these functions?

Rulemaking - Public Health Regulations

Legislature must delegate its power Why promulgate regulations?

Gives direction to regulated parties Allow public participation Harmonize practices between jurisdictions Limits the issues if there is Judicial Review

Can be overruled by the legislature

When Agencies Make Decisions – Adjudications

How is an adjudication different from a rule? Specific facts and specific parties

How is an adjudication different from a trial? Expert decisionmakers Agency makes the final decision so decisions

are uniform (Current controversy in LA) Conflict of interests can be a problem

Permits and Licenses

Permits Licenses Rights for duties

Issued on Set Criteria Conditioned on accepting regulatory

standards Warrantless inspections

Inspections

Legally classified as an adjudication License and permit holders

No warrant Administrative warrants

No probable cause Area warrants

Limits to administrative warrants Cannot be used to undermine criminal due

process

Enforcement Actions

Civil fines Injunctions to stop dangerous activities Court orders to force compliance with public

health regulations Criminal prosecution for disobeying a court

orders

The Advisory and Consultative Role

Public health is about prevention as well as enforcement

Opening a new restaurant Designing food handling area Training kitchen personnel Managing day to day problems

The major role of the CDC

Acting in an Emergency

Power expands with necessity Courts do not block emergency actions Knowing what to do is what matters Emergency powers laws are easy to pass, but

do not solve resource and expertise problems Law matters a month after

The more laws you pass, the more loopholes you can create

Part V

The Politics of Public Health

Political Control of Agencies

Agency heads are political appointees Federal independent agencies are

different Some states have boards of health, but

not much improvement Agency goals are subservient to other

political agendas Salary is also a political control

Impact of Political Control

Feds Conformation battles at the federal level Can still get talented people at the top More problems at midlevel, esp. for experts

States Salaries limit expertise in many positions Very difficult to get real experts at the top

because of improper political pressures

Impact on Public Health

Future of Public Health IOM 1988 No career track for high level public health

professionals Fired for political disputes No pension rights, no severance, not contracts

You cannot stay in public health if you protect the public health

Do agencies have expertise any more?