The indispensable role of law has been evident throughout the history of public health in the United States — from the needs of early colonialists to defend against infectious threats to today`s innovative rights-based approaches to preventing chronic diseases, injuries and other problems (Table 2). The U.S. experience with smallpox shows how, at some point in history, law-based interventions were implemented even before science clarified the nature of the public health threat and the basis for the response. The legal-epidemiological quarantine strategy to prevent the spread of smallpox was applied on Long Island as early as 1662 (10). Prevention of smallpox was also the source of the landmark 1905 decision in Jacobson v. Massachusetts, in which the U.S. Supreme Court upheld Massachusetts` legal requirement for smallpox vaccination (11). International conventions focus on the State`s obligations to protect the rights of its citizens. The strongest mandatory expressions are found in instruments enunciating civil and political rights such as the right to life and the right not to be subjected to torture, such as the International Declaration of Human Rights. States signatories to the Convention are expected to provide for such protection in their national legislation. Instruments to protect economic and social rights, such as the right to work, the right to education and the right not to be discriminated against in the distribution of public goods such as health services, presuppose a more “progressive” implementation of rights in national law, recognizing that the social and economic environment of some States may make it difficult to implement these rights. But for all human rights conventions, their implementation depends on the willingness of the State to enact laws that reflect agreed international policy.
LAW provides tailored training and capacity building to lawyers and policy focal points in relation to specific health interventions or legal entities. Two of the most important instruments that help States protect their populations from health threats are health policy and health law. The policy may exist without recourse to legislation, but if the policy was designed for a long-term purpose and voluntary compliance has not proven effective, the policy may need the hard hand of the law to be implemented. However, legislation is not always an appropriate mechanism for achieving public health objectives. This article examines the limitations of health policy and law and how they might function as dual mechanisms for public health. In August 2007, New York State amended the state`s Public Health Act and established a public and private umbilical cord blood bank program to raise public awareness of the potential benefits of public or family cord blood banks, promote research into the use of umbilical cord blood, and facilitate arrangements for public or private banking of cord blood donations. cord blood. The mission of the program is to provide educational materials and brochures on cord blood options, which will be made available to the public and potential donors through local ministries of health, health professionals, hospitals, clinics and other organizations serving pregnant women. In addition, the bill provides for the coordination and promotion of educational materials for health care providers. The law is also a bad way to force public institutions to use the powers they may have.
For example, it is common for public health officials to have the authority to isolate people with infectious diseases. If the public servant refuses to exercise this power in a manner that endangers others, the law rarely provides a mechanism for those others to enforce the exercise of the power. Indeed, the nature of a statutory power is such that it implies a margin of discretion to act or not to act, and the responsibility for determining the exercise of discretion rests with the person vested with it. Legal systems rarely provide the means to compel the public servant to act, although failure to do so could cause significant harm, as it would serve to transform power into obligation. If Parliament had wanted an obligation to act, it would have said so. Exceptionally, there could be a remedy if the failure to prevent a violation of a legally protected human right or the non-exercise of power was totally irrational. The Supreme Court of India has recognized that the right to life includes the right to the bare necessities of life (Francis Coralie Mullin v. The Administrator, Union Territory of Delhi, 1981), and that water is a community resource owned by the State in the public trust. This means that the state has a legal obligation to protect water sources and that failure to exercise its powers in this regard, such as cleaning rivers and wells, could be challenged in court (M.C. Mehta v. Union of India, 1988).
In most cases, however, policy is better suited than law to direct the exercise of power and may well impose a political or social obligation on public authorities to exercise powers in certain defined circumstances. Politicians have the flexibility to respond to changing circumstances and social needs. The law is too brutal and clumsy an instrument for this purpose. The law may confer the authority to act in a way that might otherwise violate other laws or violate human rights. If a public health official is to act to limit one person`s exposure to infectious diseases to others, the state must establish statutory powers of incarceration or isolation so that the public servant can act without challenge. Otherwise, forced detention could constitute a criminal intrusion or a violation of the right to liberty. The European Court of Human Rights found that the Swedish government exceeded its powers by detaining an HIV-positive man because he feared that his health behaviour posed a risk to public health. It was found that the detention violated the detainee`s rights to liberty and to private and family life and was compensated for violation (Enhorn v. Sweden, 2005).
The ethical conundrum is that when detainees protest, their conscientious objection, such as hunger strikes or refusal to comply with custody rules, may be their only alternative. The dilemma facing correctional clinicians is to protect the health and life of the patient while appreciating their efforts to change their system. In these situations, law enforcement agencies must educate and communicate with their patients and care workers to mitigate conflict and improve clinical outcomes. The law is an essential instrument for protecting and promoting public health. Some of the greatest public health achievements in history, such as childhood vaccinations and safer workplaces, would not have been possible without changes in laws and policies. But public health law also involves evaluating laws, even those not traditionally considered health-related, and examining their impact on individuals and communities. These analyses provide evidence that policymakers can use as a basis for future legislation. This article provides an overview of international health law. It examines the historical origins of the estate and the factors that contribute to its contemporary development.
In addition, the article provides a brief overview of the nature and importance of international law and the contribution of international organizations to the codification of international health law. Finally, the role of two international organizations, the World Health Organization and the World Trade Organization, in the current development of international law is examined in the context of recent examples of legislation with important implications for public health and public health policy. We propose that WHO have the authority and credibility to support capacity-building in the area of health law in Member States and to facilitate access, understanding, monitoring and evaluation of national laws and regulations for all interested stakeholders. WHO`s constitutional mandate is “to achieve the highest attainable standard of health for all people”24 and it has been given unlimited authority to “take all necessary measures” to achieve this goal. Specific articles of the 2005 IHR underscore this by stating that WHO will work with Member States to provide or facilitate technical cooperation and logistical support (Article 44) and, upon request, help develop, strengthen and maintain its core public health capacity (Article 5).5 Although not specifically mentioned in the IHR text, National legislation, policies and funding are defined by WHO as a key indicator of progress in developing core IHR capacities by country.25 Traditionally, law and policy have functioned as separate but interdependent instruments. Some states are considering a new form of public health law that allows the law to serve as a public expression of public health policy, even though that policy is evolving to respond to evolving public health concerns (Martin, 2006). The potential inflexibility of the law as new, unpredictable health threats emerge has been recognized in light of SARS, and since 2003, many states have begun to rewrite their infectious disease laws. Some have attempted to completely rethink how the law could best serve public health, based on the idea that contemporary public health practice operates within a risk regulation framework. Risk is not a concept that has traditionally been addressed at least openly in law, although more recently, reforms to environmental law and occupational health and safety law, two areas with public health implications, have integrated risk assessment into their legal approaches. These essential services are not operated sequentially or in isolation from each other. On the contrary, everyone is informed by and in relation to others.
In other words, improving public health depends on the best available science; the active participation of church leaders from all walks of life; and the effective use of legal tools to justify and support strategic policy decisions, implementation mechanisms and enforcement structures that will ensure the health of future generations – and all of these must be effectively interconnected to form a strategic legal infrastructure for action.