Law in Public Health Practice, 2nd Edition PDF
Preview Law in Public Health Practice, 2nd Edition
LAW IN PUBLIC HEALTH PRACTICE This page intentionally left blank LAW IN PUBLIC HEALTH PRACTICE Second Edition Richard A. Goodman, Editor-in-Chief Editors Richard E. Hoffman Wilfredo Lopez Gene W. Matthews Mark A. Rothstein Karen L. Foster 1 2007 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2007 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press The format and design of this publication may not be reproduced by any means without the prior permission of Oxford University Press. The text of this book was prepared by the authors as part of their official duties as U.S. government employees, and is in the public domain. The findings and conclusions in this volume are those of the editors and authors and do not necessarily represent the views of the U.S. Department of Health and Human Services or the Centers for Disease Control and Prevention. Library of Congress Cataloging-in-Publication Data Law in public health practice / edited by Richard A. Goodman . . . [et al.]. —2nd ed. p. ; cm. Includes bibliographical references and index. ISBN-13 978-0-19-530148-9 ISBN 0-19-530148-X 1. Public health laws—United States. 2. Public health personnel—Legal status, laws, etc.—United States. 3. Public health—United States. I. Goodman, Richard A. (Richard Alan), 1949– KF3775.L384 2006 344.73'04—dc22 2006009743 9 8 7 6 5 4 3 2 1 Printed in the United States of America on acid-free paper PREFACE As the first edition of this book neared completion in fall 2001, the United States suffered terrorist attacks on the World Trade Center and the Pentagon, and was re- sponding to the deliberate release of Bacillus anthracis spores through the U.S. postal system. These events raised concerns about our nation’s public health infra- structure, including our legal preparedness for public health emergencies at the local, state, and federal levels. Four years later, in fall 2005, as work on this sec- ond edition of Law in Public Health Practice concluded, the country was coping with the public health implications of an unprecedented outbreak of devastating hurricanes, while intensifying efforts to ensure preparedness for the threat of pan- demic avian influenza. Beyond these and other acute public health developments during 2005—and by sheer coincidence—scholars and practitioners alike had been contemplating the evolving field of public health law on the occasion of the cen- tennial anniversary of the Supreme Court’s 1905 decision in the landmark case of Jacobson v. Massachusetts. Many chapters in this second edition reflect the nation’s continuing experience with public health emergencies and heightened recognition of the paramount role of legal preparedness. In addition to the impact of public health emergencies, however, the years since the first edition have been marked by other major overlapping devel- opments in both public health practice and in the law of public health. We have la- bored to reflect these changes, too. This edition, therefore, contains four new chapters, complete or near-total revisions of five chapters from the first edition, and numerous key updates and modifications to parts of most of the other chapters. A new contribution to the book’s introductory section presents a perspective on the indispensable roles played by law in great public health achievements of the 20th vi Preface century, as identified by the Centers for Disease Control and Prevention (CDC). A new chapter on the legal structure of U.S. public health practice extends our efforts in the first edition to provide a comprehensive picture of the foundational roles of law in public health. Other major additions are a new chapter on the role of the judi- ciary in public health practice and, in parallel with the rapidly growing recognition of the role of law as a tool for preventing chronic diseases, a new chapter covering law in chronic disease prevention. This second edition of Law in Public Health Practice retains the same three-part organizational framework of the first edition, progressing from fundamental prin- ciples and foundational concepts in the first section to multidisciplinary core public health functional domains in the second section, to, in the third section, a series of chapters on law in key, selected topical and programmatic areas of public health practice. To the book’s first section have been added, as noted above, the new chapters on the structure of law in public health systems and practice and on the judiciary in public health practice. The new chapter on the structure of law in public health examines the statutory bases of both the federal and state infrastructure of the public health system, including creation of federal agencies that have public health–related respon- sibilities and powers under the U.S. Constitution. Recognition of the relation between the judiciary and public health, and the need to characterize the varied facets of this relation, are themselves relatively new aspects of the development of the field of public health law and were at the core of a three-year effort by a CDC-supported Collabo- rating Center on Public Health Law. This new chapter highlights the judiciary’s role in ensuring that public health decisions are grounded in law and respectful of indi- vidual rights, and the emerging issue of the role of judges and the courts during pub- lic health emergencies. Other major changes in the first section include a radically revised chapter on eth- ics, law, and public health, which provides an analytic tool for considering ethics as part of public health decision making. In addition to being updated, the chapter on criminal law in public health now covers the evolving concept of forensic epidemi- ology, which encompasses legal and operational aspects of joint public health and law enforcement investigations of public health events resulting from possible crimi- nal activity. Finally, the chapter on international considerations is substantially up- dated to address the increased importance of global health issues, the adoption of the new International Health Regulations by the World Health Organization (WHO) in May 2005, the continuing rise of public health threats from terrorism, and the adop- tion of the WHO Framework Convention on Tobacco Control in 2003. Within the book’s second section, the chapter on legal counsel to public health practitioners expands the overview of boards of health in relation to their rule-making powers and now discusses the relation between institutional review board functions and the legal counsel’s office for the health department. Within the chapter on front- line public health, which covers surveillance and field epidemiology, portions of the text addressing emerging developments have been modified to accentuate the law and newer public health surveillance concepts, as well as bioterrorism-related sur- veillance. The chapter on identifiable health information and the public’s health is a total revision of the related chapter in the first edition, with strengthened emphasis Preface vii on fundamental uses and disclosures of identifiable health data in public health, the legal structures and challenges that underlie public health data uses and disclosures, a core analysis of the public health implications of the Health Insurance Portability and Accountability Act of 1996 Privacy Rule, and distinctions between public health practice and research. As a result of the myriad developments in law and public health practice after the 2001 terrorism events, as well as the challenges of other interim problems (e.g., the 2003 SARS outbreak and the evolving threat of avian influenza), the second section’s chapter on public health emergency law also has been radically revised from its fore- runner in the first edition. Major revisions to this chapter include coverage of the role of emergency-management agencies, basic elements of the U.S. emergency- management system, the legal bases for and ramifications of declaring emergencies, the conceptual legal structure of mutual aid agreements, and the role of the military in emergencies. Finally, the chapter on considerations for special populations includes a new case study on the law and health disparities, as explored through issues related to the detection and management of lead poisoning in children. The book’s third section on selected topical areas of law in public health practice has been substantially strengthened with a new chapter on law in the prevention and control of chronic diseases. Two other chapters in this section are near-total revi- sions of the related chapters in the first edition. These chapters, revised to reflect different conceptual approaches and the relations between law and their respective domains, are the chapters on integrating genetics into public health policy and prac- tice and on injury prevention. Whereas all the other chapters in the third section have been revised, where possible, to include updated citations and other key information, major changes also have been made to parts of the chapters addressing foodborne- disease control, tobacco-use prevention, and reproductive health. For the second edition of Law in Public Health Practice, we sought to preserve and, wherever possible, strengthen the book’s emphasis on the essential interdisci- plinary nature of the field of public health law. In addition to the authors who con- tributed to the first edition, we are indebted to the authors—including 61 lawyers, physicians, and other public health practice professionals—who generously contrib- uted their time to this edition. We also thank Carrie Pedersen of Oxford University Press for her critically important input to the contents of the second edition; Deborah Holtzman, Ph.D., of CDC, for her review of many of the chapters; and David Benor, J.D., of the U.S. Department of Health and Human Services, for his careful review of and suggestions regarding many of the book’s chapters. We hope this book pro- vides readers in all settings—including public health departments, other public-sector organizations, and academic public health and law—with a clearer understanding of the indispensable role of law in public health practice in the United States. Atlanta, Georgia R.A.G. Denver, Colorado R.E.H. New York, New York W.L. Chapel Hill, North Carolina G.W.M. Louisville, Kentucky M.A.R. Decatur, Georgia K.L.F. This page intentionally left blank PREFACE TO THE FIRST EDITION While the modern health officer must be an educator and a statesman, rather than merely a police officer, many of his duties are still necessarily con- cerned with law enforcement. . . . Health officers must be familiar not only with the extent of their powers and duties, but also with the limitations imposed upon them by law. With such knowledge available and widely applied by health authorities, public health will not remain static, but will progress. James A. Tobey (Public Health Law, New York: The Commonwealth Fund, 1947) In his classic text on public health law in 1947, James Tobey offered the above per- spective on the relevance of law to public health practice. Tobey’s notion of more than 50 years ago may be even more pertinent now as public health enters the twenty- first century. Even before the events of September 11, 2001, forced an intensified review of legal authorities for ensuring public health preparedness for emergencies, health departments and public health practitioners had begun increasing their efforts to use law more effectively as a tool for improving the public’s health. Examples of such efforts include litigation and other approaches to curbing the effects of the epi- demic of tobacco use; the role of environmental law to address myriad environmen- tal hazards; and the complementary roles of science, regulatory authorities, and laws in improving food safety and preventing food-borne infectious diseases, as well as addressing newly emergent infectious disease threats such as the West Nile virus. The legal basis of public health practice in the United States substantially ante- dates key public health developments during the last century and even the landmark
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