Rethinking public health law and ethics – a regional perspective
Beer Sheva, Israel
Public health emerged as an organized discipline during the 19th century with the goal of improving the health of a nation as a whole. While its initial interests centered on infectious diseases, sanitation, and hygiene, its current health scope has grown to include issues such as health promotion, the rise of chronic diseases, and health inequalities. Emerging and re-emerging infectious diseases constantly remind us that the fight over contagious diseases is far from over. Recent social, cultural, and technological changes have reshaped the discipline of public health. While both bioethics and health law help healthcare professionals identify and respond to legal and moral dilemmas in their work, there has been a growing interest in separating public health law from ethics in the last decade. As bioethicist Nancy Kass wrote: “A framework of ethics analysis geared specifically for public health is needed, both to provide practical guidance for public health professionals and to highlight the defining values of public health.”1 This evolving interest in public health law as separate from ethics has important implications. Introducing these new perspectives can help encourage social and ethical sensitivities to current public health challenges, ranging from reducing health inequities (both within and between countries) to implementing the new International Health Regulations (IHR) in the context of emerging infectious diseases and pandemic influenza.
Public health foundations
Although many definitions exist for public health, a recent report submitted to the United Kingdom’s Prime Minister defined public health as “the science and art of preventing disease, prolonging life and promoting health through the organized efforts and informed choices of society, organizations—public and private, communities and individuals.”2 Public health concerns and practices have existed since antiquity, but public health has developed into its modern forms with the rise of the modern state in the nineteenth century. Public health joined other social reform movements, entering into areas previously considered ‘‘private spheres,’’ such as the family, communities, and education. For clinical medical practice and education, this offered new perspectives and professional challenges.3
The principles of public health, distinct from those of clinical medicine, are based on a population approach. Components include: (1) a focus on primary care prevention and health promotion; (2) targeted studies of how economic, political, and environmental factors can affect populations and cause diseases; and (3) how the modification of social and environmental variables can be used to promote public health aims through active social and political involvement.4 This strategy contrasts sharply with that of “traditional” modern medicine, especially as practiced in hospitals. As a result, although clinicians and public health practitioners cooperate on many levels, tensions continue to exist.5
Public health ethics as a distinct discipline
Public health preservation is a function of the complex relationship between the social actions of the state, institutions, and groups of citizens—best conceptualized by understanding the social-philosophical basis of the relationship between the individual and the state. The liberal approach focuses on the right of an individual to defend his freedom in the face of coercive state actions, even when these actions are carried out in the interest of the greater good. On the other hand, a communitarian approach views public healthcare as part of community welfare.6 The authority of the state in public health is broad, permitting extensive interventions into the private sphere. Hence, critics view public healthcare as open to exploitation by the state, which can engage in coercive practices, trampling on individual rights. Traditional issues of contention have included measures such as vaccination, quarantine, medical examination of immigrants, forced sterilization, and other eugenic measures.7
In many instances actions by the state to maintain public health and security have been forced upon individuals and groups.8 Ethical questions in public health must therefore relate to both the individual and the general public, requiring state actions to be subjected to a multifaceted analysis, especially when dealing with specific diseases or with injuries caused by the actions of the state.9
To consider public health ethics seriously, one must contemplate the intersection between public health and law. The law is interwoven into each segment of public health,10 defining the boundaries of what public health authorities can and cannot do, setting limits to their power, and placing restrictions on their relationships with individuals or social groups. With differing degrees of success, the state attempts to use the law to construct and impart lifestyle norms and healthy, safe behavior.11
To a great extent, institutions of law constitute a central arena for discourse on public health measures. A wealth of literature exists on health law, but it is mainly concerned with medicine and personal health care services governing clinical decision making, delivery, organization, and finance. Public health law should have a different focus from the aforementioned laws.
Traditionally, public health law was largely aimed at dealing with communicable diseases and other negative externalities with large-scale health impacts such as pollution.12 Recently, the main impetus for public health law reforms has been the enforcement of public health measures, such as quarantine, in the case of infectious diseases such as SARS,13 and the enforcement of environmental standards in the case of pollution.14 Although this level of enforcement is crucial for protecting public health, there are alternatives to the law that are more in line with the archetypal public health principles of promoting good health and civic participation in advancing public health. Understanding cultural and social determinants of health can inform public health practitioners when applying health promotion programs. Public participation and building trust between the establishment–medical and non-medical–are crucial and must be considered when designing public health interventions.
There is a need for a multi-disciplinary cooperation, bringing epidemiology, public health, and policy-making closer to the humanities and social sciences. In this way, the growing global health challenges associated with migration, ethnic conflicts, war, and environmental degradation can be better understood within their context. Public health ethics can foster forums for public health professionals and engage them in meaningful civic participation. Such a framework will require political impetus for reform.
Recently, the Israeli Association of Public Health Physicians has convened a working group of professionals to discuss the possibility of creating a public health code of ethics. In this process we follow similar efforts conducted internationally, such as by the American Public Health Association.15 To make the most of this Israeli initiative, the Israeli Association of Public Health Physicians should engage in dialogue with a similar group of individuals in the region, especially with public health professionals operating in the Palestinian Authority. A well-discussed regional perspective is necessary in understanding the public health needs of the Middle East so that if and when the time comes, dealing with imminent public health threats such as pandemic influenza or environmental health challenges will not come as a surprise. It behooves the welfare of a community to understand the social and ethical nuances of a particular region before enacting effective and relevant public health reforms.
- Nancy E. Kass, An Ethics Framework for Public Health, American Journal of Public Health, 2001; 91: 1776-1782
- Wanless D. Securing good health for the whole population. London: HM Treasury; 2004, p. 23.
- On the connection between public health care and the rise of the welfare state in such contexts, see Porter D. Health, civilization and the state: a history of public health from ancient to modern times. New York: Routledge; 1999.
- For a recent general overview of public health characteristics, see Institute of Medicine (US). The future of the public’s health in the 21st century. Washington: The Institute; 2003.
- On the tensions between public health and clinical medicine, see Brandt AM, Gardner M. Antagonism and accommodation: interpreting the relationship between public health and medicine in the United States during the 20th century, American Journal of Public Health 2000; 90: 707-711.
- See for example, Walzer M. Spheres of justice: a defense of pluralism and equality 68-91 (1983).
- Porter, supra note 2, at 128-46 discussed the issue of coercion and resistance in Chapter 8: The enforcement of health and resistance. For specific analyses, see Colgrove J. State of immunity: the politics of vaccination in twentieth century (2006); Schoen J. Choice and coercion: birth control, sterilization and abortion in public health and welfare (2005); Alexandra Minna Stern, Eugenic Nation: Faults and Frontiers of Better Breeding in Modern America (2005); Markel H. Quarantine! East European Jewish Immigrants and the New York City Epidemics of 1892 (1997); Fairchild AL. Science at the borders: immigrant medical inspection and the shaping of the modern industrial labor force (2003).
- See Porter, supra note 2; Stern, supra note 6; Markel, supra note 6; and Fairchild, supra note 6.
- For an analysis of state reaction to past traumatic public health events, see Davidovitch N, Margalit A. Public Health, Law, and Traumatic Collective Experiences: The Case of Mass Ringworm Irradiations, in Trauma and Memory: Reading Healing and Making Law (Austin Sarat, Nadav Davidovitch & Michal Alberstein eds., 2008).
- On the intimate relationship between the law and public health care, see Gostin LO. Public health law: power, duty, restraint (2000).
- Ibid. at 145-72.
- See Gostin, supra note 9, at 85-109.
- See Gostin L, Bayer R, Fairchild AL. Ethical and legal challenges posed by severe acute respiratory syndrome: implications for the control of severe infectious disease threats. Journal of the American Medical Association 2003; 290: 3229
- See Gostin, supra note 9
- James C. Thomas, Michael Sage, Jack Dillenberg, V. James Guillory, A Code of Ethics for Public Health, A Code of Ethics for Public Health, American Journal of Public Health, 2002; 92: 1057-1059.
NADAV DAVIDOVITCH, MD, MPH, PhD, is a public health physician and historian of medicine and public health. He is a senior lecturer at the Department of Health Systems Management, Faculty of Health Sciences at Ben Gurion University, Israel and is Chair of the Center for Health Policy Research in the Negev. His current research deals with public health policy, global health, health and immigration, health disparities, vaccination policy, and environmental health policy, focusing on contested science debates. Dr. Davidovitch serves on the Hektoen International editorial board. He can be reached at [email protected].
Highlighted in Frontispiece Spring 2010 – Volume 2, Issue 2
Spring 2010 | Sections | Ethics