Law and PH - Cards based on final class review Flashcards
(42 cards)
ID structural factors in the US legal system that complicate responding to a PH emergency (natural or intentional causes)
- Fragmented legal system, with relevant powers divided at Federal, state, and local levels
- Emphasis on local responsibility for PH
- Historical neglect of PH law – outdated communicable disease control laws
- Neglect of PH infrastructure
- Emphasis on rights of individuals
Describe CT emergency PH response plan and the PH powers under a declaration of emergency
- Authorizes Comm. Of PH to order isolation or quarantine, under conditions prescribed, of those reasonably believed to have been infected or exposed to the virus.
- o Lasts for duration of the epidemic!
- o Screening patients for travel history and symptoms
- o Notification of potential cases
- o Adherence to CDC guidelines and recommendations for care, isolation, and transport of any suspected case
Implications of the gaps/barriers in the legal structure and the powers in CT PH preparedness plan to the current Ebola crisis
- Fragmented Legal System – federalism sets us up so we have gaps in security/policy/regulations/training
- Local Responsibility – local PH departments not equipped to handle Ebola outbreak
- Historical Neglect of PH Law – having to start basically from scratch when the disease arrived here
- Neglect of Ph Infrastructure – lacking supplies,
- Emphasis on Right of Individuals – courts unlikely to uphold restrictions on liberties unless there is a compelling interest and the restriction is necessary and the least restrictive alternative. Especially if it stops you from bike riding…
Definitions and purpose of PH activities that impact privacy and confidentiality and examples
???
legal cases relevant to pH and privacy
Whalen v. Roe (1977)
US v. Westinghouse (1980)
How do PH ethics differ/similar from bioethics?
- Bioethics - focus on doctor-patient or researcher-subject relationship
- Respect for persons
- Beneficence
- Non-malificence
- Justice
- PH Ethics - focus = protect and promote the health of populations rather than individuals.
What kinds of values/ethical principles should you refer to when evaluating the ethical justification or criticism of an actual or prposed PH program?
- Communitarian – PH is founded on a sense of the social compact between all members of the community and between community and government
- Utilitarian – PH generally seeks the greatest benefit for the post people o Individuals can be expected to give up some rights for the benefit of all.
- Social justice – PH prioritize protecting and promoting the health of the most marginalized populations, often those who are not politically powerful •
- Paternalism – some people cannot take care of themselves
5 ethical criteria for evaluating government regulation
- Is the risk significant?
- Is the regulation effective?
- Is the regulation cost-effective?
- Is the regulation the least restrictive alternative?
- Is the regulation fair?
Definitions- PH research v. practice
- Research definition: Systematic collection and analysis of identifiable health data by a PH authority for the purpose of generating knowledge that will primarily benefit those beyond the participating community who bear the risks of participation
- Practice (Not Research) – activities that facilitate situation specific public health activities (outbreak, investigations, contact tracing, monitoring of health and safety issues)
o The difference is the benefit – is it a present benefit or future benefit?
James Hodge, Jr.
how to distinguish research from practice
Step 1 - sort out easy cases
Step 2 - use these guidelines for the rest:
- legal authority
- specific intent
- responsibility
- participant benefits
- experimentation
- subject selection v. population (for data collection)
ethical rules governing PH research
??
Lochner (everything about it)
Lochner v. New York (1905 - 1937?)
- Facts: Bakery law restricted bakers’ hours, and bakers wanted to work more. Justified on the basis of protecting the workers’ health, which is an important/legitimate interest.
- Holding: there is no reasonable ground here for interfering with the liberty of a person in the right of free contract; the act must have a direct reason as a means to an end and must be both appropriate and legitimate to be valid in interfering with the right to contract.
- Note: the Lochner era is… over. We do have restrictions on the ability to make contracts now.
o After this rule, over 200 laws were invalidated (ex: minimum pay, maximum hours, etc.)
- Importance:
o Allowed era of SC strike down important health and social legislation
o Unwarranted judicial interference with democratic control over the economy to safeguard the public’s health.
o Upheld the individual right to contract over the government’s ability to make laws for the public good.
Current law on regulation of economic activities from a PH perspective
RUI v. Berkeley
- holding: the right to deal with wages/employment is part of police power
test:
- substantial interferene with contractual relationship?
- Significant and legitimate public purpose?
- reasonably related to achieving goal?
benefits of using torts to protect PH
private citizens and public agencies can address problems the legislatures have failed to address:
harms to environment,
exposure to toxic substances,
pharmaceuticals,
hazardous products and defective consumer goods
burdens of using torts to protect PH
court and liability costs can deter business from entering or remaining in the market,
raise price of consumer goods,
limit consumer choices,
potential uneven impact,
stop research/growth
elements of negligence case and how to apply them
duty
breach
causation
harm
theories of tort liability beyond neglignce
- Private nuisance – unreasonable interference with a possessor’s use and enjoyment of land; requires: intention to interfere (knowledge of nuisance) and substantial interference
- Strict liability – liability without fault, based on abnormally hazardous activities or sale of defective products; requires: intention, proximate cause; includes limitation/defenses of public duty privilege, and sovereign immunity (SL only, not for negligence)
o Product liability – includes: Manufacturing defects Design defects Failure to warn Misrepresentation
Frye
general acceptance test – scientific evidence or theory must be sufficiently establishes to have general acceptance (consensus) in scientific community
Federal Rules of Evidence
– marked a shift allowed introduction of any scientific or technical evidence that will assist the trier of fact to understand… and a qualified expert may testify to it
very broad! USE DAUBERT FOR THIS unless otherwise asked
Daubert
held Federal Rules superseded Frye, BUT judges act as gatekeepers “must assure that scientific evidence is not only relevant, but reliable” narrows the standard a little bit
o Reliable? 4 factors to consider (none determinative on its own, but court may consider all factors):
Testing
peer review
error rate
general acceptance
Joiner
held TC can critically examine conclusions to determine if they are supported by studies cited.
Apply standards of relevance and reliability from Daubert
looks more like court sitting to evaluate another layer of peer review
o Important because it still narrows the scope of evidence
Define commercial speech
- Bolger v. Youngs Drug Products Corp (1983)
– 3 elements of commercial speech:
o Identifies a specific product
o Form of advertising
o Confers economic benefits – exchange for money v. goods
3 ways government aims to control the info environment
Rules
Money
Changing Perceptions
marketplace of ideas
- Free marketplace of ideas – the idea that the truth will prevail if there are enough ideas around – similar to free market economics
a. Problems – bad ideas win out when unhealthy ideas have more money, people put out wrong information, we might not have the right tools to evaluate that information, no guarantee that the right information will be accepted
