Bioterrorism, Public Health and the Law 
Law 801: Health Care Law Seminar
Professor Vernellia R. Randall

Public Health System Core Functions and the Law


Lesson Schedule
00: Intro to the Course
01: Intro to the Problem
02: Public Health System
03: Real Threat?
04: Public Health Law
05: Disease-Reporting
06: Quarantine
07: Model Act
08: Military Presence
09: Health Law Revisited

Lawrence O. Gostin, 

Lawrence O. Gostin, Scott Burris, Zita Lazzarini, the Law and the Public's Health: a Study of Infectious Disease Law in The United States, 99 Columbia Law Review 59-118, 78-88 (January, 1999) (271 Footnotes)

 Public health--as a social reform movement, as a professional discipline, and as a fixture of public administration--has continuously adapted itself to new health threats, new methods of health promotion and disease control, and changing expectations of government. Every health agency is a creature of its past experience, "which goes far to determine how it shall set about its new problems." 

  Nineteenth-century sanitarians focused on providing clean water, adequate sewers, pure food, safe workplaces, and hygienic dwellings to the urban poor who were at greatest risk for the most common communicable diseases.  Toward this end, boards of health were created and given increasingly broad powers to investigate and abate nuisances endangering health, and an administrative and legal infrastructure was built of food safety laws, building codes, social welfare programs, and water bureaus. But as early as the turn of this century, the escalating success of biomedical science was changing public health,  moving its center away from a broad social, environmental focus to a more individualized, medical one based on germ theory.  Health leaders like Surgeon General Thomas Parran pushed for the legal authority to deploy modern "epidemiological methods" of disease control,  in which pathogens were to be identified through individual testing or population screening and reporting, and then eliminated through vaccination, treatment, isolation, or quarantine.  With good diagnostic tools and surveillance, disease outbreaks could be spotted early. With quick and effective treatments, patients could be rendered noninfectious with little disruption to their lives or society's business. The pathogen, not social conditions, was thought to be the problem, and throughmodern methods like these, the pathogen could be defeated. Health authorities sought the power to test suspected carriers, screen populations (such as marriage license applicants and newborns), trace partners, and require treatment. The social vision and reform agenda that had focused sanitary reformers on slums and sewer lines was replaced with a concern for biomedical research, vaccination, and timely medical treatment. n the early- to mid-twentieth century, the heyday of the microbial model of disease, that communicable disease law assumed the form in which it largely exists to this day.

  Health departments are influenced by this history, even as they try to adapt to changes in social conditions and threats to health. Health departments today are generally organized to serve four "core functions": health promotion and disease prevention; assessment, data collection, and data analysis; medical services; and leadership and policy development.  t canvasses the core functions, and highlights how law supports them.

A. Health Promotion and Disease Prevention

  The main job of health agencies is to directly promote good health and prevent illness. To this end, modern public health practice deploys measures based on all three of the major models of disease causation. Health departments continue to employ traditional measures aimed at finding and controlling pathogens (e.g., testing, screening, reporting, contact tracing, vaccination, compulsory treatment, and isolation). Health departments also oversee the purity of water supplies and the hygienic conditions of food service establishments.  ides both jurisdiction over the problem and the authority to require compliance.  the form of privacy rules and due process requirements, also helps assure that measures involving the control of individuals are, and are perceived to be, rational, fair, and as harmless to the individual as possible. #160; Health departments also devote significant resources to changing behavior in the population. As chronic, nonmicrobial diseases such as cancer and heart disease came to dominate the mortality tables, public health focused its attention on risk-enhancing behavior such as smoking, high-fat diets, and inactivity. Significant behavioral sources of traumatic injury and death, such as teen violence and drunken driving, have also been treated as public health problems.  behavior has, of course, become crucial in controlling communicable diseases like HIV, as well.  ctor screening (for cholesterol or high blood pressure, for example), individualized counseling, and health education are standard tools of behavior change, but so is the law. Law is used to reduce unsafe behavior by both direct (e.g., helmet laws for motorcyclists and drunk driving laws) and indirect (e.g., taxes and subsidies) means, the goals of which are to make healthier behavior less costly and unhealthy behavior more expensive.  #160; Influenced by ecological thinking about disease, public health workers have recognized the importance of addressing the social causes of unhealthy individual behavior. Individual choices depend in substantial part on the options provided by society and on the behavioral cues with which individual decisionmakers are bombarded in any social setting. They also depend upon material conditions, like the distribution of wealth and government policies. Health workers now routinely design interventions that attempt to address social factors such as stigma, discrimination, and sexism. ealth officials have become advocates of policies, such as the elimination of legal barriers to sterile hypodermic syringes and needles, that make it possible for individuals to make healthier choices. ols of economics and marketing, public health authorities have begun to develop programs to influence individual behavior choices by changing the prevailing social norms. #160; Ecological strategies address environmental problems, land use, patterns of commerce, and medical and commercial use of antimicrobials,  as well as social, political, and economic conditions that influence population movement and changes in standards of living.  h broad targets, health measures aimed at ecological causes of disease quickly bring health agencies to the outer bounds of their statutory jurisdiction.

B. Assessment, Data Collection, and Data Analysis

  Public health work depends upon accurate information about the state of health of the population. A primary task of public health agencies is to collect and to analyze relevant health data, including indicators of health status, vital statistics and demographics, and epidemiological information that track communicable and noncommunicable diseases. Collected data must then be assessed and analyzed to identify suspicious or unusual outbreaks of disease, to evaluate the success of interventions, and to forecast public health and medical resource needs. Complete, timely, and accurate data on health indicators are vital to monitoring progress toward stated health objectives eploying the most effective possible interventions. Law provides the authorization for data collection and creates the duty of various professionals and institutions to provide information. However, the law's most important roles are to guarantee privacy and to ensure the careful use of data, both of which are necessary to ensure that people with socially risky conditions do not avoid the public health and health care systems.  #160; 1. Collection of Vital Statistics.--All states authorize the collection of vital statistics. Comprehensive collection of basic data such as births, deaths, and marriages helps quantify resource needs and track demographic changes in the population. Where vital statistics include racial and ethnic breakdowns, geographic locations, and causes of death or risk factors for ill health, such as low birth weight, researchers and policymakers can use them for complex analyses of health needs or risks. Timely publication of such statistics facilitates prompt local, state, and national responses.

  2. Surveillance.--Surveillance may be defined as the systematic observation of a population to identify the causes, prevalence, incidence, and health effects of injury or disease. Surveillance activities include disease reporting, anonymous serological surveys, and other epidemiological investigations. Traditionally, health departments have collected information on both communicable ommunicable diseases.  Both passive surveillance (collection of data reported by health care providers) and active surveillance (collection of data by personnel trained and equipped to investigate disease outbreaks) are important. Under a more expansive view of epidemiology and disease causation, health departments not only collect information on reported cases of disease, but also survey samples of the population to measure the prevalence of identified behavioral and environmental risk factors for ill health. Examples of this approach are the Behavioral Risk Factor Surveillance System (BRFSS) and Youth Behavioral Risk Factor Surveillance System (YBRFSS), which track a number of identified risk factors using telephone surveys.  and functioning system in the U.S. and abroad requires investment and support of the basic public health infrastructure involved in surveillance, including health departments, laboratories, investigative and laboratory personnel, data collection and analysis capabilities, and the ability to disseminate the information. 

  Health agencies generally have ample authority to conduct surveillance. Limits tend to be imposed sporadically--through funding restrictions--upon research that becomes controversial. Recent examples include a national survey of sexual behavior and blinded studies of HIV seroprevalence among newborns. In the former case, opponents argued that government-funded prying into sexual behavior constituted a breach of privacy.  In the latter, paradoxically, critics objected that blinded procedures designed to protect privacy prevented doctors and patients from reaping useful medical information from the research process. 

  3. Public Health Laboratories.--An important aspect of data collection and analysis is the operation and maintenance of public health laboratories. These facilities provide highly technical testing and pathological services and set the standards for quality assurance in private labs. They represent a vital part of the public health infrastructure,  contributing to effective policymaking and helping to ensure basic medical and preventive services. Moreover, public health laboratories are critical to the core functions of assessment and surveillance. Health departments depend on public health laboratories for the information necessary to detect, prevent, and control communicable diseases. Effective tuberculosis control, for instance, requires prompt identification of active cases of tuberculosis,  analysis of drug susceptibility,  and increasingly, DNA analysis for tracking probable routes of infection in institutional or community settings.  portant assessment and surveillance activities of public health laboratories include detection and documentation of food- and water- borne infections, surveillance of antimicrobial resistance, environmental testing, toxicologic screening of individuals potentially exposed to hazardous substances, and epidemiologic and evaluative research on health problems and program effectiveness. ing and expanding the capacity of public health labs to analyze surveillance information and identify pathogens is critical to preserving public health's ability to combat known diseases and to identify and investigate emerging or reemerging diseases.  or threats to public health laboratories are political and take the complementary forms of underfunding and privatizing governmental functions.

  4. Program Evaluation.--Thorough and effective public health programs can be expensive.  scally constrained system, those responsible for public health programs must be able to demonstrate that they are accomplishing their stated goals.  If a program actually increases early detection of an environmental health risk or identification of a disabling disease, it may improve the public health (and therefore be justifiable) even if it does not save money in the short term. For this purpose, public health departments must be able to collect or receive from other agencies a wide variety of data, including health status, disease outbreaks, morbidity and mortality rates, environmental and behavioral risks, as well as the number of individuals served and the proportion of populations reached by preventive health services. This sort of interagency data sharing and cooperation could be built into the legal structure of state and local governments, as it is to some degree at the federal level, but has rarely happened to date. 

C. Medical Services

  Traditionally, public health agencies have provided individual health care services in addition to population-based disease prevention and health promotion activities. Public health clinics function as a provider of last resort for some of those who lack health coverage, a portion of the American population that seems destined to grow.  Although provision of individual medical services is not the public health department's primary activity, it will remain an important aspect of public health work as long as a segment of the population lacks other means of access to health care.

  Ideally, health care would be provided through the health care system, and public health departments would provide individual patient care only in cases where the special training, expertise, and resources of public health workers were required to control health threats to the population. There are, in fact, many such cases. For example, health departments can assist private health care providers and institutions in a variety of ways. In the area of HIV (or STDs), health departments can provide partner notification services for HIV- infected patients and prevention services for high-risk, yet uninfected, patients.  Health departments can also provide technical assistance and training for hospital staff in HIV counseling and testing.  these clinics often provide vital care to individual patients, their goal is not so much the delivery of individual treatment as it is the interruption of transmission of communicable and sexually transmitted diseases. ld of limited health care access, health departments must struggle to meet the needs of the un- and underinsured without losing sight of their distinct mission of disease control. . Leadership and Policy Development

  Effective public health policymaking does not exist in a vacuum, nor is it purely a scientific pursuit. It is necessarily influenced not only by biomedical and social science, but also by fiscal concerns, culture, and politics. It depends upon planning, collaboration with nonhealth entities, building popular support, and the capacity to exercise political leadership.

  Public health policy development requires prioritizing health problems, identifying solutions, and determining who can best implement them. Ideally, public health policy should include long-range planning that forecasts resource needs, maintains the public health infrastructure, and anticipates new health threats. long-range planning, health departments may find crises--such as an environmental accident, a disease outbreak, or a new or perceived health risk--driving their priority setting and policymaking.  From the leadership point of view, a planning process that includes communities in identifying priorities andfashioning responses is an excellent way to create political support for health programs, quite apart from its benefits in making better programs in the first place.  Unfortunately, only a minority of states consistently engage in community planning for public health,  and only a handful of health departments are required to do so by law. #160; Since many of the determinants of health are outside the jurisdiction of health departments, public health officials, in developing policy, must collaborate with other state departments and public agencies (e.g., environmental protection, agriculture, highway safety, housing, welfare, social services, and law enforcement agencies), community-based organizations (e.g., nongovernmental entities, activists, and persons with disease), the private sector (e.g., business and labor), and academic institutions (e.g., schools of public health, nursing, dentistry, and medicine). Public health agencies can often only accomplish their goals by instigating and coordinating health- enhancing activities in these other spheres.  

 The IOM Report on the future of public health recognized that building public understanding of and support for public health programs was an essential duty of any public health agency.  ately, the need for renewed support for public health efforts comes at a time when the prevailing political winds favor the private sector and carry a strong suspicion of anything in the way of governmental "interference" with the Panglossian machine of the market.  

 Effective public health work requires leaders who can win battles in the halls of government. Programs have to be approved by executives and funded by legislators in an environment of scarcity and, often, political polarization. Effective public health leaders appreciate the process of developing public health initiatives, including the legislative process, as an opportunity to define important health issues and take the lead in solving them. Drafting legislation or regulations provides a chance to gather and build relationships among important stakeholders, and any interaction with legislators is an occasion to get their attention and educate them about public health needs and methods.

  The IOM has criticized health agencies for failing generally to exercise strong leadership in health matters.  some health department leaders are extremely astute politically and have managed to establish their credibility in government and the community,  ir to say there is a crisis in public health leadership in America. 


Related Pages:
Home ] Up ] [ Public Health System Core Functions and the Law ] The Legal Advice of Rumpole the Malevolent ] The Power to Protect the Public Health ] The Current Status of State Public Health Law ] Legal Basis for Large-Scale Quarantine ] The Evolution of Public Health Regulation ] Public Health Practices in the Colonial and Federalist Periods ] Ohio State Statutes ] Selected Ohio Cases ] Ex parte Company ] Application re Halko ] Bioterrorism and Public Health Law: the Critical Choices ] Biological Terrorism and Legal Measures ] Legal Authority and Health Disparities ]
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Home ] Syllabus ] Introduction to the Course ] Introduction to the Problem ] Public Health System ] Is Bioterrorism a Real Threat? ] Public Health Law and Bioterrorism ] Disease Reporting and Police Powers ] Quarantine and Police Powers ] Model State Public Health Law ] Military Presence and Public Health ] Public Health Law - Revisited ]
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