Lance Gable

The Patient Protection and Affordable Care Act, public health, and the elusive target of human rights.

The Patient Protection and Affordable Care Act (ACA) sets in motion a wide range of programs that substantially affected the health system in the United States and signify a moderate but important regulatory shift in the role of the federal government in public health. This article briefly addresses two interesting policy paradoxes about the ACA. First, while the legislation primarily addresses health care financing and insurance and establishes only a few initiatives directly targeting public health, the ACA nevertheless has the potential to produce extensive public health benefits across the United States population by improving access to health care and services and reducing cost. Essentially, the ACA does not take the explicit form of a public health law but instead strives to advance public health indirectly through its effects. Second, while the ACA does not establish a right to health - or even a right to health insurance - in the United States, it does set in motion a number of significant structural and normative changes to United States law that comport with the attainment of the right to health. Most significantly, key provisions of the bill are designed to improve availability, accessibility, acceptability, and quality of conditions necessary for health, and to prompt the government to respect, protect, and fulfill these conditions. These developments mean that, to a degree, the United States essentially has undertaken the same types of legal and policy steps that a country would be required to take to uphold the right to health without actually recognizing the right to health in any formal or legally binding way. Despite these dual paradoxes and the upside potential for public health improvements resulting from the ACA, the public health impact of the law remains uncertain and will be decided by numerous subsequent regulatory and implementation decisions. The ACA authorizes multiple federal agencies to engage in rulemaking, a process that will largely dictate the systemic and health impacts that will become its legacy. This reality opens up ample opportunity to bolster public health aspects and interpretations of the law, and to simultaneously augment the corresponding components of the right to health.

The Proliferation of Human Rights in Global Health Governance

Human rights play an integral role in the global governance of health. Recently, both structural and normative aspects of human rights have proliferated across multiple levels and within multiple contexts around the world. Human rights proliferation is likely to have a positive impact on the governance of health because it can expand the avenues through which a human rights framework or human rights norms may be used to address and improve health.

HIV/AIDS, Reproductive and Sexual Health, and the Law

The law is a frequently overlooked tool for addressing the complex practical and ethical issues that arise from the HIV/AIDS pandemic. The law intersects with reproductive and sexual health issues and HIV/AIDS in many ways. Well-written and rigorously applied laws could benefit persons living with (or at risk of contracting) HIV/AIDS, particularly concerning their reproductive and sexual health. Access to reproductive health services should be a legal right, and discrimination based on HIV status, which undermines access, should be prohibited. Laws against sexual violence and exploitation, which perpetuate the spread of HIV and its negative effects, should be enforced. Finally, a human rights framework should inform the drafting of laws to more effectively protect health.

Legal Aspects of HIV/AIDS: A Guide for Policy and Law Reform

This guide to the legal aspects of the pandemic will help enhance the World Bank institutions contribution in support for the global response to HIV in several areas, including strengthening national strategies, accelerating implementation, and generating and sharing knowledge. The guide covers 65 wide-ranging topics in a concise, accessible format, explaining how laws and regulations can either underpin or undermine public health programs and responsible personal behavior. For each topic, the guide summarizes the key legal or policy issues, provides relevant practice examples (citing actual laws and regulations), and offers a selective list of references that may be consulted for more information. This guide creates a supportive legal framework for responding to HIV/AIDS, it is important that governments effectively address gaps and other problematic aspects in their legislation and regulatory systems.

Public Goods, Private Data: HIV and the History, Ethics, and Uses of Identifiable Public Health Information

b d Public health departments collect a vast array of identifiable information in the course of mandatory reporting efforts and other surveillance activities. These undertakings span a range of conditions from infectious threats and chronic diseases including cancer, to immunization status and birth defects. Advocates for expanded surveillance extended the practice to occupational diseases and, most ambitiously, to profiles of childhood health status. Syndromic surveillance is also increasingly undertaken in the new post-September 11 security environ - ment. In the one Supreme Court case addressing public health surveillance, a unanimous tribunal upheld the right of the state to conduct surveillance. 1

A global assessment of the role of law in the HIV/AIDS pandemic

This article examines the dynamic role of law as a tool, and potential barrier, to public health interventions designed to ameliorate the negative impacts of human immunodeficiency virus (HIV)/acquired immunodeficiency syndrome (AIDS) globally. Law impacts the lives of persons living with (and at risk of) HIV/AIDS in many ways. Laws may: (1) help to ensure that public health authorities are empowered to provide effective prevention and treatment programmes; (2) effectuate the human rights to life, health, work, education and property ownership of persons living with, or at risk of, HIV/AIDS; and (3) protect persons living with HIV/AIDS from social risks, stigma and other harms by respecting privacy and prohibiting unwarranted discrimination. However, laws can also create legal barriers in many countries that impede effective HIV/AIDS interventions by penalizing those with HIV/AIDS through criminal sanctions or other policies. As a result, it is recommended globally that laws should facilitate the prevention and treatment of HIV/AIDS consistent with scientific and public health practices and with a human rights framework. Effective use of existing laws that promote the publics health, and reforms of laws which impede it, contribute to improved individual and communal health outcomes concerning HIV/AIDS.

Protecting the mental health of first responders: legal and ethical considerations.

journal of law, medicine & ethics Introduction The public safety, human services, health, and relief workers who comprise the first wave of a response to natural or man-made disasters play a critical role in emergency preparedness. These first responders provide care and services in the immediate aftermath of emergencies and may remain in affected communities for weeks or months. They often work long hours under stressful conditions, witnessing the human harms, physical destruction, and psychological devastation that can accompany disasters.1 Not surprisingly, first responders may experience physical injuries or psychological harms due to their work. In recent years, emergency preparedness researchers have focused on environmental exposures and other risk factors,2 such as structural instabilities within the built environment, which may impact first responders’ physical health. Harms to first responders’ mental health, however, are equally important to consider. Although mental health conditions may be overlooked because they can be difficult to visibly identify and diagnose, their presence may significantly affect first responders’ ability to function.3 Studies have demonstrated that, after participating in disaster responses, first responders experience elevated rates of depression, stress disorders, and posttraumatic stress disorder (PTSD) for months and sometimes years.4 Those without disaster response training face a greater risk of receiving a PTSD diagnosis after the response concludes.5 Trained responders may not be prepared for a disaster response’s psychological challenges, because training cannot truly replicate a disaster environment. Furthermore, most trainings do not explicitly include sufficient content regarding psychological self-aid. Given these findings, measures must be taken to protect first responders’ mental health. The development of laws and policies at the federal, state, tribal, and local levels provides numerous opportunities to implement standardized mental health protections for first responders. In some instances, these legal opportunities may benefit from guidance afforded by a consideration of relevant ethical concerns. This article discusses the legal and ethical issues raised in three key areas that are fundamental to protecting and promoting first responders’ mental health: (1) mental health screening for first responders; (2) licensure portability of mental health care providers; and (3) workers’ compensation for mental health claims.

The Role of State Law in Protecting Human Subjects of Public Health Research and Practice

Public health activities present important ethical issues and risks to human subjects, whether these activities are considered research or practice. The federal regulations designed to protect human subjects during research studies, known as the Common Rule, may apply to a number of public health activities, such as disease reporting, surveys, or review of medical records. The extent that the Common Rule should apply to public health practice is still debated, but the National Bioethics Advisory Commission (NBAC) suggests that state law could offer meaningful guarantees that public health activities will protect the rights and welfare of individuals. This study sought to evaluate whether state public health law provides protection for people comparable to the Common Rule. State statutes that set the powers and duties of health agencies were reviewed to identify provisions that provided protections analogous to those provided by the Common Rule. The Common Rule contains six key protections: 1) consent for data collection; 2) protection of private information in collected data; 3) use of a bona fide, safe, and effective research design; 4) equitable selection of subjects; 5) appropriate data safety monitoring; and 6) protection of vulnerable populations. Our analysis showed that the protection provided to the subjects of public health practice by state law is comparable to the protection provided to research subjects under the Common Rule, but clearly not identical. The Common Rule requires individual informed consent prior to information collection. By contrast, there is no state law requirement for individualized consent for many kinds of data collection; consent may not be revoked; and notice for most people will be formal rather than actual. Privacy protections and data security requirements, which are explicitly outlined in the Common Rule, vary greatly under state public health laws. Data collection plans are not required under state law to be formally reviewed for either scientific or ethical quality. Ethical performance, including protection or inclusion of vulnerable populations, is not an explicit performance measure in the accountability/ management framework of public health. The Common Rule achieves accountability through the Institutional Review Board system; state law obtains accountability more indirectly through courts, elections, and the media. Ultimately, state public health law is an important regulatory resource to protect human subjects, complementing not only the Common Rule, but other ethical standards. The importance of effective public health practice justifies the development and understanding of regulatory approaches that promote excellent public health practice, including respect for human subjects.

Mental health and due process in the Americas: protecting the human rights of persons involuntarily admitted to and detained in psychiatric institutions

In many countries in the region of the Americas, persons with mental disabilities can be involuntarily confined in psychiatric institutions for indefinite periods with hardly any justification and little or no oversight. Such circumstances clearly violate the human rights principles of liberty and due process found in binding international and regional legal instruments. Furthermore, the countries of the Americas generally have failed to adopt legislation or interpret constitutional provisions consistent with human rights principles and guidelines. The oversight and monitoring mechanisms of the Inter-American Human Rights System can constitute an effective legal tool that can be used to promote and protect the human rights and fundamental freedoms of persons with mental disabilities by supplementing existing national laws or serving as a method of regulation in places where national laws are not available. Countries should enact national laws that apply basic due process protections for individuals involuntarily confined in mental health facilities. This would help to ensure that individuals are not admitted and detained arbitrarily, that the persons mental disability is sufficiently serious to warrant involuntary confinement, and that the decision to admit and detain the person is reviewed expediently and periodically by an independent, impartial tribunal. We contend that a more vigorous application of human rights norms by the Inter-American Human Rights System is necessary to hold states accountable for their treatment of persons with mental disabilities and to lead them to enact legislation protecting the rights of persons with mental disabilities who are confined involuntarily in psychiatric facilities.

Global Public Health Legal Responses to H1N1

journal of law, medicine & ethics Introduction Pandemics challenge the law and often highlight its strengths or expose its limits. The novel strain of influenza A (H1N1) virus that emerged in the spring of 2009 and rapidly spread around the globe was no exception. The H1N1 pandemic prompted the first significant application of a number of international legal and policy mechanisms that have been developed in the last decade to respond to this kind of event. Furthermore, it presented a considerable test for public health systems at all levels, from global to local. Although initial predictions forecasting high morbidity and mortality from this virus overestimated its eventual impact, the human toll of the pandemic was nevertheless significant. The World Health Organization (WHO) reported approximately 1.5 million people were infected worldwide in 214 countries, resulting in over 25,000 confirmed deaths, but the actual health impact of the outbreak was certainly much higher.1 Several explanations may be offered, in hindsight, to explain the lower-than-expected morbidity and mortality rates. The rates might represent a momentous success for public health, validating the strategies — including legal strategies — employed to stem the spread of the disease. The result might also be attributed to epidemiological fortuity, since this strain of influenza A (H1N1) virus proved less virulent than initially feared. Public health systems would not likely have functioned or responded as well had the strain been more deadly. Alternatively, some have described the public health response as an overreaction, questioning the designation of this outbreak as a pandemic and arguing that public health efforts may have been motivated by bad faith decisions or conflicts of interest within public health systems and institutions.2 Our analysis suggests that the 2009 influenza A (H1N1) virus prompted a number of legal responses that were integral to the resulting public health outcomes. Legal frameworks supported a complex global response, requiring the combined efforts of governments, inter-governmental and non-profit institutions, and private entities. The application of these frameworks demanded international cooperation among these actors on activities including disease surveillance and sharing of information and resources. In addition, laws impacted access to pharmaceutical countermeasures such as vaccines and antiviral medication. Governments also employed public health powers to institute a variety of non-pharmaceutical countermeasures in an attempt to control the spread of the virus, including quarantine, school closures, and other social distancing measures. Three key examples of global public health legal responses to the H1N1 pandemic are illustrated below: (1) the role of Mexico as a first responder; (2) the first conceptual and operational test of the revised International Health Regulations (IHR (2005)); and (3) the legal and policy complications raised by virus-sharing agreements between countries.