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Public Health Law Outside of the Courtroom

posted on Thu, Dec 1 2011 8:17 am by Jill Krueger

PSE Changes

We talk a lot in public health law circles about using law as a tool to improve public health. And I’ve noticed that public health practitioners are talking about it, too. But the practitioners are more likely to call it policy, systems, and environmental change (PSE change).

That difference in terminology makes sense to me. The dominant image of lawyers presents them in the courtroom. Public health lawyers want to broaden the conversation about the role of law from inside the courtroom to out in the environment.

At the Network, we are less focused on the courtroom, and more focused on the committee room. It is in these committee rooms—a local health department or board of health, a local school board, the transportation committee of a state legislature, or a regional development committee with representatives from a variety of sectors of public and private life—that we hear groups of people debating goals, evidence and methods to improve public health. In this context, as in the courtroom, law is a powerful tool.

Lawrence Gostin, author of one of the leading textbooks in public health law, Public Health Law: Power, Duty, Restraint, has identified seven legal tools to improve public health. These tools include:

  • Taxation and spending (for example, grants, tax credits or favorable loan terms for grocers who locate in food deserts)
  • Changes to the information environment (for example, requiring use of graphic warning labels on cigarettes)
  • Changes to the built environment (for example, requiring inclusion of bike and walking paths when planning a new housing development)
  • Changes to the socioeconomic environment (for example, implementing and modernizing the WIC program to include the cash value voucher for fruits and vegetables)
  • Direct regulation (for example, requiring health care workers to obtain vaccinations or take other steps to avoid catching or spreading disease)
  • Indirect regulation through the tort system (for example, laws prohibiting the sale of adulterated foods may achieve a greater deterrent effect when they provide a basis for lawsuits by private citizens)
  • Deregulation (for example, Good Samaritan laws such as the one recently adopted in Washington state to provide immunity from drug possession charges for victims and witnesses who seek help after an opiate overdose; police rarely made arrests in such cases, but opiate users have said that explicit deregulation will make them more likely to call for help in the event of an overdose)

 

When the Institute of Medicine released a report on the role of law and policy in overcoming public health challenges, it dedicated an entire chapter to a discussion of the use of these seven legal tools to improve public health.

Despite the difference in terminology, these legal tools are precisely the same tools that can assist public health professionals working to affect PSE change. PSE change is a model for moving from change at the individual level to change at the population level. PSE change has been embraced as a public health approach at the federal level (for example, Communities Putting Prevention to Work; Community Transformation Grants) and at the state level (for example, Minnesota’s Statewide Health Improvement Program).

As you consider the public health challenges that you face, you may want to consider whether one of the legal tools listed above might help address the problem. Or contact the Network by phone or email to learn about which tools have worked for others, and to discuss which tools might be most accepted and effective in your community.

This information was developed by Jill Krueger, senior attorney for the Network for Public Health Law – National Coordinating Center at the Public Health Law Center at William Mitchell College of Law.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this document does not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

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