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Public Health Law

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

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Public Health Law

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

  2. 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

  3. 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

  4. 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

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

  6. 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

  7. 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

  8. 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

  9. 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

  10. 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

  11. 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

  12. 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

  13. 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

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

  15. 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

  16. 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)

  17. 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

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

  19. 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

  20. 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

  21. 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

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

  23. 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

  24. 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

  25. 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

  26. 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

  27. 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

  28. 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

  29. Legal and Administrative Techniques • Obtaining information, questionnaires, reports and records • Administrative hearings

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

  31. 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

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

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