Date: Wed, 14 Jul 2004 13:01:11 -0700 (PDT)
From: ILISE Feitshans <[log in to unmask]>
Subject: PREPRINT of OEM article RE ASLME/ CDC PHLA meeting 2004

Re-Inventing Public Health for the 21^st Century: ASLME and CDC Bring Doctors and Lawyers Together to Redefine the Role of Public Health.

Reported to OEM Report by Ilise L. Feitshans, JD and ScM

 

Author, DESIGNING AN EFFECTIVE OSHA COMPLIANCE PROGRAM (Westlaw.com, updated annually)

Author BRINGING HEALTH TO WORK  and other books

Adjunct Associate Professor of Occupational and Environmental Health, GWU SPHHS and Guest Lecturer at Yale University School of Medicine

120 Warwick Rd Haddonfield NJ USA 08033

856 428 0605    [log in to unmask]

 

I. Taming the Wilds of   Uncontrolled Disease and Illness

The American Society of Law Medicine and Ethics convened its third public health law conference, entitled, “The Public's Health and the Law in the 21^st Century: A Partnership conference in Public Health Law” planned in conjunction with the Centers for Disease Control and Prevention (CDC) and the Public Health Law Association (PHLA) in Atlanta Georgia June 14-16 2004.  Physicians from state and county health offices across the nation, law school faculty, public officials from Departments of Health, state and federal offices of the Attorney General, state legislatures, judges, lawyers and occupational health experts joined to create the projects discussed in workshops at this conference.

 

II. New Directions  in Public Health Law

Despite the pervasive prominence of doctors in the shaping and implementation of public health policy, law provides the superstructure for the existing loosely defined public health  infrastructure. The inextricable link between an understanding of the superstructure of the legal system and the best practices in medicine that are necessary for the implementation of legal goals by the infrastructure was brought to the fore very clearly in this conference, perhaps for the first time since the founding of joint programs in law and public health nearly two decades ago. This conference therefore represented a landmark in contemporary jurisprudence, because it represents the first series of conferences that clearly recognize the centrality of law in the development of public health practice as an essential tool to promote and protect public health. Topics discussed included new partners in community preparedness; lawyers as advocates in public health practice; commercial speech and public health: regulating advertisements in tobacco, alcohol, high fat foods and hazardous products; legal approaches to regulating internet tobacco sales; legal frameworks for chronic disease prevention; whether quarantine is voluntary or not, and implications of interdisciplinary communication across professions and its influence on law school curricula.

Several sessions addressed legal preparedness during emergencies, which refers to the actual procedures involved in quarantine. Do judges need to see the defendant in person in times of  public health crisis such as an outbreak of a airborne agent  for bioterrorism? If not, can trials be held from a remote location without the defendant present? Plans were discussed for "mass quarantine" to be managed much like the class actions in toxic torts, with only one set of facts studied in detail by the court and then applied to a large population of people. The courts might conduct trials of people who violated the quarantine from remote locations in such contexts, and also might have pleadings or administrative orders prepared in advance of the outbreak.

As mentioned in the opening session, which sought public comment from the assembled audience, there is a need to prepare “benchbooks” which are loose leaf notebooks that provide guidance to judges informally, without the official imprimateur of a government agency or oversight authority. Such benchbooks might contain sample pleadings for the arrest, search or detention of individuals who are suspected of having come in contact with a biohazardous agent, such as anthrax or any other lethal virus. Questions were raised about the process for emergency credentialing of physicians and health professionals in times of crisis, when they may be handling patients whose symptoms or actual diseases are outside the practicioner’s area of specialization and expertise. This in turn raises issues about quality of care and whether the usual customary standards of care change during a public health  emergency. Does the profession relax standards of care during an emergency, or in the alternative, require some emergency preparedness training of all practiconers such that they can be equipped with the analytical tools to ask the right questions when confronted with a new or novel public health situation?

Existing laws already address many of the session topics, regardless whether they do so in too much detail (to the point of becoming unconstitutionally burdensome) or inadequately (so that they are unconstitutionally vague). But, there was extensive discussion about the inadequacies of these laws and their need  to reflect new public health data and methodologies. There was discussion in several sessions about new approaches to outdated laws using the Turning Point Model  State Public Health Act  and also the Model Emergency Health Powers Act.  Both laws have been copied by dozens of states in response to 9/11.  The conference organizers in this regard deliberately attempted to build a long-overdue analytical bridge between medical professionals and the law that could bring the  public health perspective to the teaching of law.

This embryonic concept was illustrated by a student from a joint degree program in law and public health in Georgia, in which she described the tribulations of professors who neither understood epidemiology and biostatistics and also failed to grasp the public health underpinnings of major areas of the law such as torts, civil rights and civil liberties, property issues involving public nuisances and sanitation,  and constitutional law.  There was lively interaction between three law teachers, as they discussed the changing role of  public health law courses in light of recent pandemics and other current events. Several panelists entertained the notion of  using a perspective of public health as a standard component of all law schools’ coursework. Under this construct, even when course names are unchanged, greater attention could be paid to the public health role of the law and the way in which public health policy problems are a player in shaping the evidence and outcome of major litigation.  This embryonic concept was illustrated by a student from a joint-degree (public health  and law) program in Georgia The conference workshops also underscored the disconnect that separates local public health authorities from private sector providers including occupational health services and occupational medicine physicians. At the conference, a new award was presented, honoring people who work in both medicine and public health. The presence of such professionals and the recent founding of the Public Health Law Association, which includes many doctors and  health  professionals is in itself a milestone, marking  an emerging collective discipline. 

 

III. Emergency Planning: New Approaches or An Old Refrain?

Another new beachhead in public health jurisprudence is the merging concept of Legal Preparedness for national public health emergencies, which would have lawyers, judges and physicians on call in the event of a public health emergency in order to control the movement of populations in the event of a known outbreak of illness or disease, or in the wake of a bioterrorist event that releases a harmful biological agent. According to the writings of Moulton, Legal preparedness has four core elements: 1 laws; 2 competencies of those whop make, implement  and interpret laws; 3 information across disciplines and 4 co-ordination across disciplines and jurisdictions.  Renewed concern for the old areas of disaster relief, now focused on emergency episodes such as a possible bioterrorism event, calls into question the possible impact of emergencies on hospitals and ordinary health care providers. Would they serve voluntarily: who covers the potential liability when they are not working on behalf of the hospital or their regular practice; if serving as a volunteer do good Samaritan rules apply, and if not, what is the standard of care; are they required to have specialized training outside of their usual realm of expertise?  In order to develop guidelines, procedures that would be implemented during emergencies and a chain of command, legal advisors have already been integrated into the planning stages of disaster protection and containment.

It is important to note that all these discussions revolved around the use of pre-existing, albeit dormant powers within the public health codes of contemporary legal systems in the states and upheld by the US Supreme Court. Since the turn of the twentieth century, several efforts have been made to codify  public health police powers and to solidify into one coherent analytical framework the loosely configured and interrelated notions of public health police powers found in the various state and local public health laws in the USA.  One new model discussed extensively at this conference, the State Emergency Home Powers Act, calls into action the convening of an advisory group to advise the governor, and then provides he governor with broad powers to draft  renewable executive orders of thirty days duration. Such orders include but are not limited to the authority to suspend pharmacy rules or licensing rules in order to allow  doctors and health professionals from other states to enter to administer care in times of a disaster or national emergency.  While it is not yet clear whether the Model acts will fill the existing voids in local laws even after they have been widely adopted, the completion of the model act project in itself is a significant jurisprudential accomplishment, reflecting a new maturity in the field of public health law. It has become common since the mid-twentieth century to convene expert panels of lawyers and law teachers to focus on specialized topics under law and prepare so-called "model" acts, which are designed to provide a flexible framework for creating new legislation in complex areas of the law, ranging from toxic torts, international trade contracts involving several nations or multinational corporations, and areas on the frontiers of science. Although a "Model" act is not designed to  dictate the precise language that the legislature should use when writing a law, it is viewed as a consensus document that reflects refined thinking and best practices in a given area of the law. So too, with the Turning Point Model act and the other model laws that have been discussed at this conference.

 

IV. The "Crisis Du Jour" Syndrome in Public Health Legislation and Funding

Discussion of emergency preparedness, legal planning as well as emergency medical services brought the conference discussion to an old refrain in public health:  A sustained investment in public health research, rather than merely funding the “crisis du jour,” is necessary to ensure new and better public health practices. Dr. Georges Benjamin, Executive Director of the American Public Health Association (APHA)  who spoke at a plenary session,  decried the endemic topic-of-the-month approach to funding an public awareness of public health problems, noting that chronic illness and the public's need for the medical work of the public health infrastructure does not end when the funding goes away. He recognized the need to engage the public as an active force in national public health efforts. Benjamin cited surveys showing that even in the post-September 11 United States, a large percentage of the public still believes they have never been touched by a public health service. Fear that the perpetual, if not inevitable, discontinuity in public health funding for all types of epidemiological studies and health care can ruin even the best of plans to promote health and prevent injury, disease and illness  was a theme common to several speakers. The national scope of public health efforts needs to be adapted to fit the global nature of health challenges, said Benjamin, who supports a plan to increase CDC’’s budget by $1 billion over the next five years. This theme was echoed by  Edward Richards, in the paper he prepared for a session regarding obesity, which is a legislative public health policy topic "du jour". According to Richards, " Unless the constituents or a powerful citizen or industry lobby care about an issue, there is little time and few resources to address it… Programs which might be effective in the long run will see their funding cut because they make little short-term difference, and other issues will capture the public imagination".

Dr. Howard Markel, who also addressed the full conference, echoed  Dr. Benjamin's comments about a sustained investment in public health, referring to the “tragic refrain” of epidemics and public health crises that are quickly forgotten by the public as the next issue surfaces. Howard Markel, MD, PhD,  is George E. Wantz Professor of the History of Medicine, University of Michigan, a physician-historian who has chronicled the history of the public health enterprise in the U.S., commenting on the “tragic refrain” of public health crises that are quickly forgotten by the public as the next problem emerges. His new book, "When Germs Travel", which was available autographed by the author,   illustrates this point by describing the impact of six different pandemics from the twentieth century in the USA. A mentality that ignores a disease like SARS today because it was important "last year"  belies the fact that public health issues persist even after public attention wanes. Markel  also attempted to debunk the myth that immigration waves brought disease. This theme, sounded during the waves of  immigration at the time of the TB pandemic, black plague, cholera, has been echoed at the time of HIV/AIDS and SARS. Dr Markel discussed his book's evidence that immigrants were and still are the scapegoats of disease. Popular fear is focused, however, on the sudden events and not the chronic diseases. Chronic disease is a more widespread problem, but it takes a long time and people don't see it happening, so they stop funding the research once the public health community has stemmed the tide of increased incidence.  Markel discussed use of 14th amendment due process clause to reverse a 1920's  order that prevented US citizens of Chinese ancestry to move freely in the USA. He emphasized the need to exploring less restrictive alternatives before declaring a quarantine: management of illness through emergency services, and increased screenings.

V. Conclusions: Old Wine in New Bottles? New Views of Old Public Health Policy

The  cornerstone of  the legal basis for implementing public health measures has always been the police power which grants states the inherent authority to protect the health welfare and safety of all citizens.  The rhetoric of public health law, although offered by fewer voices from fewer types of professions in past centuries, sounds after this conference to be very much the same. It may well be that the rhetoric is unchanged since the nineteenth century US Supreme Court cases that discussed mass vaccination. But the meaning of the terms and conditions embedded in that rhetoric has dramatically changed in millennial leap to the twenty first century, compared with the twentieth century context. The rhetoric is unchanged; yet one major problem remains: sound public health law and its practice are like water; too few droplets in the desert and people die of thirst, too much water flooding the lowlands and people drown; for best practices in public health under law are  invisible yet essential to life when it is available in the appropriate measure.  Yet  water all the same. Thus the use of public health police power must be applied appropriately in each different context, in order to be effective and valid. 

In conclusion, the most complex question raised by this important new partnership, therefore, is not whether the disciplines should be merged, for their link is inextricable, but whether any of the topics addressed together are truly new in the area of public health policy. Unchanged with the new vision of public health law in the 21st century is the traditional  model of public health intervention using the police power inherent in governance. The conference reflected not merely the emergence of a new unified collective discipline of public health law, but also a renewed understanding that the linchpin of the ability to exercise such powers remains: funding for implementation. In this sense, the collective view of public health law that has begun to evolve in the decades since the passage of the Toxic Substances Control Act (TSCA) and the Occupational Safety and Health Act (OSH Act) of  1970 uses the long-standing language of public health police powers to address old issues that were never given sustained attention or adequate funding in the twentieth century.

 

Ilise L Feitshans  JD and ScM.   Barnard College, Columbia University BA Cum laude 1979; Georgetown University Law Center JD  1983;  ScM Johns Hopkins University  1996.  She is a former Member of the Faculty from Columbia University School of Law, and the author of  five books, including WALKING BACKWARDS TO UNDO PREJUDICE and over 100 articles.  Feitshans is the author of DESIGNING AN EFFECTIVE OSHA COMPLIANCE PROGRAM, a treatise for lawyers on Westlaw.com updated annually, and BRINGING HEALTH TO WORK.  In addition to al Guest Lectures at Yale University School of Medicine and many colleges and universities, she has organized three conferences about inclusion and special education, most recently the "Right to Learn" conference. She  presented seminars at the United Nations Fourth World Conference on Women , China (1995). She is a Member of the Womens' Committee of the State of  NJ Council on Developmental Disabilities. She is Adjunct Associate Professor of Occupational and Environmental Health at GWU  SPHHS.