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? •
Government
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 –
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
Licensing Health Facilities
•
•
•
•
•
•
•
•
•
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
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