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Introduction to Public Health Law
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Part I
History of Medical and Public Health Science
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Paracelsus
Philippus Aureolus Theophrastus Bombastus Von Hohenheim
Early 16th Century Transition From Alchemy Experiments And Systematic Observations Antimony
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Anatomy And Function
Andreas Vesalius Mid 16th Century Accurate Anatomy
William Harvey Early 17th Century Flow Of The Blood And Operation Of The Heart
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Edward Jenner
Smallpox Major Killer Wiped Out The Indigenous Peoples 1798 – Published His Book On Cowpox
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John Snow
Cholera In London Broad Street Pump Proved Cholera Is Waterborne 1854
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Ignaz Philipp Semmelweis
Childbed Fever Fellow Medical Student Died Controlled Studies 1849
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Louis Pasteur
Scientific Method Germ Theory Vaccination For Rabies Pasteurization 1860s-1880s
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Foundation of Modern Surgery
William Morton Anesthesia 1846
Joseph Lister Antisepsis 1867-1880s
Surgery Became Big Business Drove Development of Hospitals
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Infectious Diseases
Koch’s Postulates - 1880s Agent Must Be Present In Every Case; Agent Must Be Isolated From The Host And Grown In
Vitro [In A Lab Dish]; Agent Must Cause Disease When Inoculated Into A
Healthy Susceptible Host; And Agent Must Be Recovered Again From The
Experimentally Infected Host. Limitations
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Tuberculosis Control - 1900
The Major Killer Koch And Pasteur Sanatoria Pasteurization Of Milk Disease Control Of Dairy Herds
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Drug Chemistry – 1880s
German/Swiss Dye Industry Bayer Hoffman La Roche Ciba
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Antibiotics
Sulfa Drugs In The 1930s Penicillin
Alexander Flemming – 1928 Purified By Chain And Florey In 1939 World War II - Coconut Grove Fire (1942)
Streptomycin – 1944 First Antituberculosis Drug Selman Abraham Waksman – 1944 (Coined The Term Antibiotic
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Post World War II
Conquering Microbial Diseases Vaccines Antibiotics
Chronic Diseases Better Drugs Better Studies Leukemia
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Part II
Public Health Law and Practice
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Public Health in the Colonies
Most of the population lived in poorly drained coastal areas Cholera Yellow Fever
Urban Diseases Smallpox Tuberculosis
Average Life Expectancy in cities was 25 years
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Public Health Law Actions in Colonial America
Quarantines, areas of non-intercourse Inspection of ships and sailors Nuisance abatement Colonial governments had and used Draconian
powers The Police Powers
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Police Power
Police departments came later Power to protect the public health and safety
Communicable disease control Sanitation Nuisance Drinking water
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Articles of Confederation
In effect between independence and the ratification of the Constitution in 1789 Left all powers to the states The states provided what support they
wanted to the federal effort Did not work during the War
Remember the stories about Washington's troops not having shoes?
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Public Health in the Constitution
Federal Powers Interstate commerce International trade and travel War powers
State Powers Powers not given to the federal government Police Powers
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Actions in the 1798 Yellow Fever Epidemic
For ten years prior, the yellow fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non-intercourse between New York and Philadelphia. (Argument of counsel in Smith v. Turner, 48 U.S. (7 How.) 283, 340-41 (1849))
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Is there a Federal Police Power?
Constitutional Debate US Supreme Court says no, but ...
Can the Feds do local disease control? CDC only comes in at the state's invitation Public Health is state and local
Can the Feds require smallpox vaccinations? Invasion Clause?
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Limits of the Police Power
Very broad Protect public health and safety Must be prospective
Public health regulations are about preventing future harm
Must be civil, not criminal The reason for the action, and not the results,
determine whether it is criminal Confinement in jail Megan's laws and confinement of sexual predators
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Public Health as the First Administrative Law
Among the first acts of Congress Public health service hospitals and
quarantine stations State and Local Government
Boards of Health - Paul Revere sat on the Boston Board of Health
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Part III
Core Public Health Functions
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Disease reporting
No right of privacy No right to refuse reporting Can inspect medical records Child abuse and violent injury reporting Also extended to medical procedures,
occupational illnesses, use of scheduled drugs, and other areas of public health concern
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Disease Investigation
Contract Tracing Partner Notification Investigations of business and food
establishments Public health data can be reported to the
police, but it cannot be the basis of prosecution
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Mandatory treatment and restrictions
Vaccination law Jacobson - no free riders No requirement for religious exception
VD/STI/TB, others Can require testing or treatment Can hold in jail if you refuse Habeas Corpus is the remedy
Many states have weakened these laws due to political pressure over AIDS
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Environmental Health
Food sanitation, drinking-water treatment, and wastewater disposal Most public health orders are directed at
environmental health problems. Two central legal questions:
When does the government owe compensation to the owners of regulated property?
When can inspectors enter private premises to look for public health law violations?
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Vital Statistics
Birth and death records Disease registries
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Part IV
What are the legal tools to carry out these functions?
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Rulemaking - Public Health Regulations
Legislature must delegate its power Why promulgate regulations?
Gives direction to regulated parties Allow public participation Harmonize practices between jurisdictions Limits the issues if there is Judicial Review
Can be overruled by the legislature
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When Agencies Make Decisions – Adjudications
How is an adjudication different from a rule? Specific facts and specific parties
How is an adjudication different from a trial? Expert decisionmakers Agency makes the final decision so decisions
are uniform (Current controversy in LA) Conflict of interests can be a problem
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Permits and Licenses
Permits Licenses Rights for duties
Issued on Set Criteria Conditioned on accepting regulatory
standards Warrantless inspections
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Inspections
Legally classified as an adjudication License and permit holders
No warrant Administrative warrants
No probable cause Area warrants
Limits to administrative warrants Cannot be used to undermine criminal due
process
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Enforcement Actions
Civil fines Injunctions to stop dangerous activities Court orders to force compliance with public
health regulations Criminal prosecution for disobeying a court
orders
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The Advisory and Consultative Role
Public health is about prevention as well as enforcement
Opening a new restaurant Designing food handling area Training kitchen personnel Managing day to day problems
The major role of the CDC
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Acting in an Emergency
Power expands with necessity Courts do not block emergency actions Knowing what to do is what matters Emergency powers laws are easy to pass, but
do not solve resource and expertise problems Law matters a month after
The more laws you pass, the more loopholes you can create
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Part V
The Politics of Public Health
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Political Control of Agencies
Agency heads are political appointees Federal independent agencies are
different Some states have boards of health, but
not much improvement Agency goals are subservient to other
political agendas Salary is also a political control
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Impact of Political Control
Feds Conformation battles at the federal level Can still get talented people at the top More problems at midlevel, esp. for experts
States Salaries limit expertise in many positions Very difficult to get real experts at the top
because of improper political pressures
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Impact on Public Health
Future of Public Health IOM 1988 No career track for high level public health
professionals Fired for political disputes No pension rights, no severance, not contracts
You cannot stay in public health if you protect the public health
Do agencies have expertise any more?