2A - Ethics and Professionalism Instructions Read the case study and Modules 1 & 4 (see attachments) Then Discuss how the legal standards of health care practice come into play (see Module 1); and

What Is Public Health?

In thinking about the application of ethical thought to problems in public health, it is important first to understand what we mean by public health. How is the field defined and what is its content—mission, functions, and services? Who engages in the practice of public health—government, the private sector, charities, community-based organizations? What are the principal methods or techniques of public health practitioners? In truth, finding answers to these fundamental questions is not easy because the field of public health is highly eclectic and conflicted.

Definitions of public health vary widely, ranging from the utopian conception of the World Health Organization of an ideal state of physical and mental health to a more concrete listing of public health practices. The Institute of Medicine, in its seminal report on the Future of Public Health in 1988, proposed one of the most influential contemporary definitions: “Public health is what we, as a society, do collectively to assure the conditions for people to be healthy.” The IOM’s definition emphasizes the cooperative and mutually shared obligation (“we, as a society”). It reinforces the fact that collective entities such as governments and communities take responsibility for health. The goal of public health is the health of populations—rather than the health of individuals—and this goal is reached by a generally high level of health throughout society, rather than the best possible health for a few. The field of public health is concerned with health promotion and disease prevention throughout society. Consequently, public health is less interested in clinical interactions between health care professionals and patients, and more interested in devising broad strategies to prevent, or ameliorate, injury and disease.

The State of Debate : Scholars and practitioners are conflicted about the “reach” or domain of public health. Some prefer a narrow focus on the proximal risk factors for injury and disease. The role of public health agencies, according to this perspective, is to identify risks or harms and intervene to prevent or ameliorate them. Others prefer a broad focus on the socio-cultural-economic foundations of health. Those Module 1: Tradition, Profession, and Values in Public Health 14 favoring this position see public health as interested in a more equitable distribution of social and economic resources because social status, race, and wealth are important influences on the health of populations.

What are Public Health Ethics?

If public health is what society does collectively to assure the conditions for healthy people, then what are public health ethics? Public health ethics may be defined as the principles and values that help guide actions designed to promote health and prevent injury and disease in the population. In thinking about this problem it will be helpful to distinguish public health ethics from biomedical ethics.

The field of biomedical ethics has richly informed practice and policy in medicine and health care.

Biomedical ethics has often stressed the importance of individual interests of patients, notably the right to autonomy, privacy, and liberty. Ethicists, however, at least until recently, have given insufficient attention to the equally strong values of partnership, citizenship, and community. As members of a society in which we all share a common bond, we also have an obligation to protect and defend the community against threats to health, safety, and security. There remains much work to do in public health ethics. Is the population- based perspective of public health different from the patient-centered perspective of medicine? Is a public health ethic merely the aggregation of individual interests in a population? What is the moral standing that should be attached to the common good? Under what circumstances should individual interests yield to achieve a collective benefit for the population? Some scholars have thought about public health ethics in three overlapping ways: professional ethics (the values that help public health professionals to act in virtuous ways); applied ethics (the values that help to illuminate hard problems in public health policy and practice); and advocacy ethics (the overarching value of population health and social justice).

Professional ethics are concerned with the ethical dimensions of professionalism and the moral trust that society bestows on public health professionals to act for the common welfare. This form of ethical discourse stresses the distinct history and traditions of the profession, seeking to create a culture of professionalism among public health students and practitioners. It instills in professionals a sense of public duty and trust.

Professional ethics are role oriented, helping practitioners to act in virtuous ways as they undertake their functions. Currently, the Public Health Leadership Society is developing a Code of Public Health Ethics (available at www.publichealthlaw.net/reader).

Applied public health ethics are concerned not so much with the character of professionals as with the ethical dimensions of the public health enterprise itself. Here, scholars study the philosophical knowledge and analytic reasoning necessary for careful thinking and decision making in creating and implementing public health policy. This kind of applied ethics is situation or case-oriented, seeking to understand morally appropriate decisions in concrete cases. Scholars can helpfully apply general ethical theory and detached analytical reasoning to the societal debates common in public health.

In addition to “professional” and “applied” ethics, it is possible to think of an “advocacy” ethic informed by the single overriding value of a healthy community. Under this rationale, public health authorities think they know what is ethically appropriate, and their function is to advocate for that social goal. This populist ethic serves the interests of populations, particularly the powerless and oppressed, and its methods are principally pragmatic and political. Public health professionals strive to convince the public and its Module 1: Tradition, Profession, and Values in Public Health 15 representative political bodies that healthy populations, reduced inequalities, and social justice are the preferred societal responses.

The State of Debate : Scholars and practitioners disagree on each of the three forms of public health ethics. First, many believe that a code of ethics, or at least a well-articulated values statement, could increase the status of the field and help clarify the distinctive ethical dilemmas faced by public health professionals. Others, however, point to the fact that no single public health profession exists, but rather a variety of different disciplines—e.g., epidemiologists, nurses, sanitary engineers, and public health educators. It would be difficult to find a single set of values that is relevant to each of these distinct groups.

Second, many believe that the value of population health and safety should be salient. However, others criticize the public health model because it assumes that the appropriate mode of evaluating options is some form of cost-benefit calculation that appears to permit, or even require, that the most fundamental interests of individuals be sacrificed in order to produce the best overall outcome. Applied public health ethics draws from the traditions of utilitarianism, which is not always favored in modern philosophical scholarship. Third, many believe that the central role of public health is to advocate for community health and social justice. Public health advocates are supported by a body of literature demonstrating a relationship between socio-economic status and healthy populations. However, others believe that it is not self-evident that health and justice should always be the prevailing value. They also point to the fact that the redistributive agenda of public health is best reserved to the political branches of government.

What is Public Health Law?

Public health law differs from ethics in that it is concerned with a body of rules of action prescribed by controlling authority and having binding legal force. Law is found in constitutions, which empower governments to act and set limits on their power; statutes, which are enacted by legislative bodies and control the actions of individuals and businesses; regulations, which have similar effects as statutes but are usually promulgated by the executive branch; and court cases, which interpret the constitution, statutes and regulations, often setting binding precedent.

Law is a primary means with which government creates the conditions for people to lead healthier and safer lives. Law creates a mission for public health authorities, assigns their functions, and specifies the manner in which they may exercise their authority. Law is a tool in public health work which is used to influence norms for healthy behavior, identify and respond to health threats, and set and enforce health and safety standards. The most important social debates about public health take place in legal fora—legislatures, courts, and administrative agencies—and in the law’s language of rights, duties, and justice.

The police power is the most famous expression of the natural authority of sovereign governments to regulate private interests for the public good. The police power is the inherent authority of a state to protect, preserve and promote the health, safety, morals, and general welfare of the people. To achieve these communal benefits, the state retains the power to restrict, within constitutional limits, private interests–personal interests in autonomy, privacy, association, and liberty as well as economic interests in freedom to contract and use property.

Law can be an effective tool to achieve the goal of improved health for the population. Statutes, regulations, and litigation, like other public health prevention strategies, intervene at a variety of levels, each designed to secure safer and healthier populations. First, government interventions are aimed at individual behavior Module 1: Tradition, Profession, and Values in Public Health 16 through education (e.g., health communication campaigns), incentives (e.g., taxing and spending powers), or deterrence (e.g., civil and criminal penalties for risky behaviors). Second, law regulates the agents of behavioral change by requiring safer product design (e.g., safety standards and indirect regulation through the tort system). Finally, law alters the informational (e.g., advertising restraints), physical (e.g., city planning and housing codes), or business (e.g., inspections and licenses) environment .

The State of Debate : Not everyone believes that law is an appropriate way to protect and promote the community’s health, and when law is used in any of its manifestations it is bound to create controversy.

Coercive interventions aimed at changing individual behavior are perhaps most contentious, such as infectious disease powers. Many people believe that government should rarely exercise coercive powers either because they are ineffective (e.g., it will “drive the epidemic underground”) or overly intrusive (e.g., it will undermine autonomy, privacy, or liberty). Regulation of products through the tort system is also controversial. Here, people argue that tort law often offers the wrong kind of incentives (e.g., deterring innovation for vaccines or pharmaceuticals) and is inefficient (e.g., devoting too many resources to lawyers).

Finally, regulation of the informational or economic environment is controversial. Think about the disputes that arise from regulation of advertising of cigarettes (public health versus free speech) or the regulation of businesses through licenses and inspections (public health versus property rights).

What is the Role of Human Rights in Public Health?

The language of human rights is used in different, but overlapping, ways. Some use human rights language to mean a set of entitlements under international law, while others use human rights for its aspirational, or rhetorical, qualities. Depending on the way in which human rights is used, the field can have features that are quite similar to law or ethics.

Legal scholars use human rights to refer to a body of international law that originated in response to the egregious affronts to peace and human dignity committed during World War II. The main source of human rights law within the United Nations system is the International Bill of Human Rights comprising the United Nations Charter, the Universal Declaration of Human Rights, and two International Covenants of Human Rights. Human rights are also protected under regional systems, including those in American, European, and African countries.

Human rights are often divided between those that protect civil and political rights on the one hand and economic, social, and cultural rights on the other. Civil and political entitlements include the right to life, liberty, and security of person; the prohibition of slavery, torture, and cruel, inhuman, or degrading treatment; freedom from arbitrary interference with privacy, family, or home; and freedom of conscience, religion, expression, and association. Economic, social and cultural rights include the right to social security, education, and work, as well as the right to share in scientific advancement and its benefits.

Notably, human rights instruments recognize the right of everyone to the highest attainable standard of physical and mental health, "including the right to a standard of living adequate for the health and well- being of himself and his family, including food, clothing, housing and medical care and necessary social services.”(Universal Declaration of Human Rights, Art. 25).

The language of human rights is often used for its aspirational, or rhetorical, qualities. When “rights” language is invoked, it is intended to convey the fundamental importance of the claim. It expresses the idea that government should adhere to certain standards, or provide certain services, because it is right and just Module 1: Tradition, Profession, and Values in Public Health 17 to do so. Human rights as a symbol commands reverence and respect. Used in this aspirational sense, human rights need not be supported by text, precedent, or reasoning; they are self-evident and government’s responsibility simply is to conform.

The State of Debate : Although human rights are supported by a body of international law and express an inspiring idea about personal dignity, they are often criticized for imprecision and lack of enforceability.

Civil and political rights are perhaps the most precisely defined and carefully studied, but international agencies often fail to rigorously defend these rights in the real world. Economic, social and cultural rights are thought to be vague and unenforceable. For example, the conceptualization of health as a human right, and not simply a moral claim, suggests that states possess binding obligations to respect, defend, and promote that entitlement. Considerable disagreement, however, exists as to whether “health” is a meaningful, identifiable, operational, and enforceable right, or whether it is merely aspirational or rhetorical. To achieve the goal of greater clarity and enforceability, the United Nations Committee on Economic, Social, and Cultural Rights issued General Comment No. 14: The Right to the Highest Attainable Standard of Health (2000). This General Comment seeks to define the right to health and suggest ways in which it can be enforced.

Tradeoffs Between the Collective Good and Individual Rights Public health law and ethics often require careful balancing between individual interests in personal (e.g., autonomy, privacy, and liberty) and economic (e.g., contracts and property) freedoms on the one hand and collective interests in health safety and security on the other. Certainly, freedom and security can be mutually reinforcing. Affording individuals their rights can result in greater overall wellbeing by empowering people to safeguard their own health and safety. For example, if people do not fear loss of privacy or liberty, they are more likely to seek medical and public health services. Coercive powers can literally “drive epidemics underground.” Sometimes policy makers must make hard tradeoffs between individual and collective interests and, in these circumstances, they need to be guided by ethical values and attentive to legal procedures and norms. Public health laws and our courts have traditionally balanced the common good with individual civil liberties. As Justice John Marshall Harlan wrote in the seminal United States Supreme Court case of Jacobson v.

Massachusetts , 197 U.S. 11 (1905), “the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the ‘common good.’” Jacobson was a case that concerned compulsory vaccination, but the difficult tradeoffs between public and private interests can extend to many areas of public health concern ranging from infectious disease control powers (e.g., testing and screening, partner notification, and quarantine) to control of businesses (e.g., inspections and nuisance abatements) and the professions (e.g., licensing).

How should society determine whether to intervene to protect the public’s health and safety when doing so will diminish a personal or economic interest? There is no sure way to know when interventions are necessary and appropriate, but here are some of the factors that need to be taken into consideration:

Step One: Demonstrate Risk . Risk is a complex idea that involves several dimensions. First, what is the nature of the risk? Risks arise from numerous sources including physical, chemical, organic, environmental, and behavioral. Second, what is the duration of the risk? Risks may be imminent, distant, acute or chronic.

Third, what is the probability that the risk will actually occur? Risks may be either highly likely or remote. Module 1: Tradition, Profession, and Values in Public Health 18 Finally, what is the severity of harm should the risk materialize? Harms can be catastrophic or relatively trivial if they do occur. They may affect individuals or populations, current or future generations, or people or the things that people value (e.g., plants, animals, or the environment).

Step Two: Demonstrate the Intervention’s Effectiveness . The intervention should be reasonable likely to reduce the risk. Public health is primarily about prevention so one important measure is whether the intervention is reasonably like to work. This is a “means-ends” inquiry, which seeks to understand if the public health intervention will lead to effective risk reduction.

Step Three: Assess the Economic Cost . The intervention should not only be capable of reducing the risk, but it should do so at a reasonable cost. Policy makers, therefore, should discover the costs to the regulatory agency and the subject of the regulation. Wherever possible, policy makers should prefer strategies that are least expensive and most effective. The reason is that government only has limited resources. If it spends money wastefully on an intervention, it will not have those resources available for another, potentially more effective, intervention. Thus, cost-ineffective measures have “lost opportunity” costs.

The criterion to prefer cost-effective measures does not mean that society must wait until there is unassailable scientific evidence before it can intervene. Some advocates have argued for the adoption of a “precautionary principle.” The precautionary principle is not consistently defined but it means that public health authorities may act to prevent future harms to people and the environment even in the absence of conclusive proof that the harm is real or that the intervention will be effective.

Step Four: Assess the Burdens on Human Rights . Sometimes even cost-effective policies should not be undertaken if they disproportionately burden human rights. Policy makers, therefore, should think about the invasiveness of the intervention, the frequency and scope of the infringement, and the duration of the infringement. Human rights do not always trump public health, but they certainly need to be weighed carefully.

Step Five: Assess the Fairness of the Intervention . Policies should be formed and implemented in just ways.

Thus, there should be a fair distribution of benefits and burdens. Ethicists examine fairness in a variety of different ways, but they often focus on need and risk. Benefits or public health services should often be distributed based on need. That is, those who have the greatest need should have some claim to the benefit or service. On the other hand, regulatory burdens should often be distributed on the basis of risks posed.

That is, those who pose the greatest risks to the public or the environment should bear the costs and burdens of regulation. There are certainly other ways to evaluate the just allocation of benefits and burdens (e.g., principles of the most efficient distribution), but need and risk are two likely criteria.

In summary, a public health intervention can be evaluated using several criteria: (i) the nature, probability, and severity of the risk; (ii) the likelihood that it will be effective in meeting its objectives; (iii) the economic costs entailed, including opportunity costs; (iv) the burdens on human rights, and (v) the fairness, including a just allocation of benefits and burdens.

Module 1: Tradition, Profession, and Values in Public Health 19 Conclusion The field of public health is highly complex. What is the meaning of pivotally important abstract concepts that are common in public health: population, community, risk, harm, and benefit? How should society decide when it is necessary and appropriate to intervene to protect the public’s health? Are factors such as risk, effectiveness, cost, burdens, and fairness the best ways to evaluate public health interventions? How does the population perspective differ from the individual perspective? To what extent should social justice be an animating value in public health? Scholars and practitioners use various forms of reasoning in analyzing these problems, notably ethics, law, and human rights. Each form of reasoning has its own benefits and disadvantages. While each form of reasoning is distinct, all the forms overlap in important ways. One thing is certainly clear, there are no “correct” answers in public health. However, careful examination of principles and values taken from each of these fields can clarify thinking and, ultimately, lead to more effective and just policies and practices in public health.

Further Readings in Public Health Law and Ethics Books Beauchamp DE, Steinbock B (eds.), New Ethics for the Public’s Health , New York: Oxford University Press, 1999.

Gostin LO (ed.), Public Health Law and Ethics: A Reader , Berkeley and New York: University of California Press and Milbank Memorial Fund, 2002.

Gostin LO, Public Health Law: Power, Duty, Restraint , Berkeley and New York: University of California Press and Milbank Memorial Fund, 2000.

Articles Callahan D, Jennings B, Ethics and Public Health: Forging a Strong Relationship, Am J Pub Health (2002):

92:169-176.

Childress JF, Faden, RR, Gaare RD, et al. , Public Health Ethics: Mapping the Terrain, J Law, Med & Ethics (2002) 30:170-178.

Gostin LO, Sapsin JW, Teret SP, et al. , The Model State Emergency Health Powers Act: Planning and Response to Bioterrorism and Naturally Occurring Infectious Diseases, JAMA (2002) 288:622-628.

Gostin LO, Public Health, Ethics, and Human Rights: A Tribute to the Late Jonathan Mann, J Law, Med & Ethics (2001) 29: 121-130.

Kass NE, An Ethics Framework for Public Health, Am J Pub Health (2001): 91:1776-1782.

Roberts MJ, Reich MR, Ethical Analysis in Public Health, Lancet (2002) 359:1055-1059.

Thomas JC, Sage M, Dillenberg J, Guillory VJ, A Code of Ethics for Public Health, Am J Pub Health (2002):

92:1057-59.

Internet Resources Web site of the Center for Law and the Public’s Health at Georgetown and Johns Hopkins University (CDC Collaborating Center Promoting Health Through Law): http://www.publichealthlaw.net Module 1: Tradition, Profession, and Values in Public Health 20 Web site accompanying the book, Gostin LO (ed.), Public Health Law and Ethics: A Reader , Berkeley and New York: University of California Press and Milbank Memorial Fund, 2002:

http://www.publichealthlaw.net/reader