Midterm Flashcards
WHO definition of health
“Health is a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.”
problems with WHO definition of health
impossible to achieve and of diminishing salience in aging world
important as aspiration guidance, but hard to measure and tough to evaluate
Lancet definition of health
“…the ability to adapt to one’s environment. Health is not a fixed entity. It varies for every individual, depending on their circumstances. Health is defined not by the doctor, but by the person, according to his or her functional needs. The role of the doctor is to help the individual adapt to their unique prevailing conditions.”
Healthcare vs. Public Health (broadly)
Healthcare: curative, focused on individuals
Public Health: preventative, focused on populations
population health, broadly
can’t treat way to pop. health
many health services have smaller benefits at pop. level than suspected
others harmful (medical error)
what is a health risk?
risk comes from Latin and Greek for “cliff” (resicum, risicum, riscus)
Risk: the probability that an outcome will occur after some exposure
What is the law?
system of rules
created via gov’t structures
enforced by or w/in gov’t entities
examples of the law
Constitution City ordinance Federal regulation State statute Executive order
basic hierarchy of laws
Constitution: foundational document
Statue: enacted by legislature
Regulation: created by gov’t agencies
Non-regulatory guidance: created by gov’t agencies
How do I know which law to follow?
Follow most specific or restrictive law
When conflict, higher authority wins (pre-emption)
define common law
general body and system of laws inherited from England
focused on compensation for harms and enforcement of individual rights
still evolving in judicial branch
key features of common law in U.S. today
rely on and respect judicial precedents
give judges a (limited) opportunity to look beyond text of the law at issue
define plaintiff
files lawsuit
define defendant
defends action that was basis of lawsuit
define parties (r/t courts)
plaintiff and defendant
define cause of action
facts and legal theory that allow plaintiff to file lawsuit
basis of cause of action
may be based on:
statute
contract
common law
define District Court
first stop in most lawsuits
one judge manages court filings and trial
define Appellate Court
losing party identifies potential error made at lower court
three judges read appeal documents, participate in hearing, vote on outcome
define Highest Court
last option, but choose which cases to hear
all judges read appeal documents, participate in hearing, vote on outcome
how does law influence health?
health law --> legal practices --> change in behavior/environment --> improved pop. health
define social determinants of health
The conditions in which people are born, grow, work, live, and age, and the wider set of forces and systems shaping the conditions of daily life. These forces and systems include economic policies and systems, development agendas, social norms, social policies, and political systems. –WHO, 2008
mechanisms linking inequality to poor health
stress/trauma: allostatic load social resources social cohesion sense of coherence differential tx by law
LaLonde (1970s)
promotes “populations-at-risk” or high risk approach
medical model of diagnosis -> tx
e.g. bariatric surgery, health counseling
Rose (1980-90s)
articulated population or distribution approach
e.g. encourage exercise, folate fortification
Frohlich and Potvin (2008)
“One of the major shortcomings of Rose’s approach is that it does not address the underlying mechanisms that lead to different distributions of risk exposure between socially defined groups within populations… We contend, however, that a focus on vulnerable populations is complementary to a population approach and necessary for addressing social inequalities in health.”
Interventional Theory of risk
we can shift distribution of risk, and therefore the mean effect
but shape of the risk distribution may change, too
vulnerable populations
subgroup or subpop. who, b/c of shared social characteristics, is at higher risk of risks.
groups b/c of position in social strata that are commonly exposed to contextual conditions that distinguish them from the rest of the pop.
concentrate numerous risk factors throughout life b/c of shared fundamental causes associated w/ position in social structure
ethical justifications for public health law
Harm Principle: prevent harm to others
Paternalism: prevent harm to self
Parens Patriae: protect incompetent person
legal justifications for public health interventions
constitutional authority
statutory authority
regulatory authority
3 main powers of Constitution
federalism
separation of powers
individual rights
define Federalism
allocates power between state gov’ts and federal gov’t
define separation of powers
divides power among 3 branches of gov’t
define individual rights (r/t Constitution)
limits gov’t’s power by protecting liberties
historical antecedents to Separation of Powers
trouble with king
trouble w/ Continental Congress
pros of Separation of Powers
stable
checks & balances
cons of Separation of Powers
slow
allows ‘capture’
gov’t heavily reliant on legislators
enumerated powers
federal gov’t can only act pursuant to an explicit grant of authority in the U.S. constitution
power & roles of Federal Legislative Branch
to create laws and fund gov’t through budget laws
ex: to tax and spend; regulate interstate commerce; “necessary and proper” laws for implementing other enumerated powers
power & roles of Federal Executive Branch
to implement and enforce law
ex: to make treaties; appoint ambassadors; SCOTUS judges and other officers; “take care that laws be faithfully executed”
power & roles of Federal Judicial Branch
to interpret laws and Constitution and to resolve conflicts
ex: hear all cases “arising under Constitution, laws of U.S…”, original jurisdiction in all cases affecting ambassadors, appellate jurisdiction otherwise
which branch is arguably most powerful?
Legislative (per Alexander Hamilton)
define agency
official gov’t body empowered with authority to direct and implement specific legislative acts
role of Federal legislative branch in agencies
passes laws that authorize, empower, and govern agencies
controls budget
role of Federal executive branch in agencies
appoints agency heads
sets priorities and agenda
some agencies independent (i.e. attorneys general)
role of Federal judicial branch in agencies
interprets laws that govern agencies
checks constitutionality and legality of agency action
roles of agencies
write specific rules issue licenses conduct inspections and evaluations administer civil penalties collect data provide reports distribute grants implement programs
why are statues r/t agencies often broadly worded?
easier to get consensus on broad points
reps and Senators are generalists; agencies have specialized training, experience
executive powers of agencies
enforcement
judicial powers of agencies
hearings to challenge enforcement
legislative powers of agencies
rules in interstices
specific requirements to make rules
interpretive rules
basic requirements of rulemaking
prior notice
opportunity to comment
statement of bias and purpose
federal rules not requiring notice and comment
military and foreign affairs
interpretive rules and policy statements
organizational agency rules
when impractical or unnecessary
Chevron deference
courts should defer to agency interpretations of related statutes unless interpretation is clearly unreasonable
Federalism in Constitution
power of federal and state gov’ts
how conflicts are resolved
State government powers
“police power” and “parents patriae” power
10th amendment
10th amendment
the powers not delegated to the U.S. by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people
Dillon’s rule
localities only have the power granted to them by the states
some state constitutions grant localities wide authority over self-governance
Interstate Commerce Clause (ICC)
Congress can regulate:
- channels of IC
- things moving in IC
- any activity that “substantially affects” IC
examples of legal regulation of health-related behavior
policy innovation
policy evaluation
dissemination and implementation
philosophical problem with policy learning and decentralization
races to the bottom
practical problem with policy learning and decentralization
complex state laws, difficult to study
lack of data
legal exposure hard to measure
conflicts create litigation
Supremacy Clause of Constitution
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.”
federal law preempts state law
types of preemption
conflict
express
conflict preemption
fed and state gov’ts regulate in an area, fed gov’t wins when federal intention is “clear”
fed. often provides floor of protection or regulation
express preemption
Congress occupies the field, denying states any opportunity to regulate
i.e. bankruptcy law, reg. of nuclear power plants
commandeering
state officials cannot be forced to enforce federal law
pros of Federalism
decentralized authority enables policy-learning (laboratories of state”
may enable more responsible effective government
cons of Federalism
lack of uniformity can be confusing and costly
long and dark history of “states rights”
3 laws struck down outside ICC since 1940s
- Lopez (1995) - Gun Free Zones Act
- Morrison (2000) - Violence Against Women Act
- NFIB v. Sebelius (2012) - Individual Mandate from ACA
define “parens patriae”
gov’t takes care of vulnerable people
ability to make legal decisions for children, prisoners, mentally disabled
define “police power”
inherent agreement to give up certain rights for good of city/state
elements of criminal case
gov’t initiates lawsuit
against a person
for violating criminal laws
elements of civil case
private person or gov’t initiates lawsuit
against person(s) or gov’t
for violations of civil law
standard of proof
criminal: beyond a reasonable doubt
civil: preponderance of evidence (sometimes clear and convincing evidence) - more likely than not that something happened
penalties of criminal cases
incarceration, probation
penalties of civil cases
usually money, court ordered actions
constitutional protections for criminal defendants
right to jury
right to lawyer
plea bargains
agreement some level of guilt in exchange for a deal
90-95% of cases end with plea bargain
must be presented and approved by judge
settlements
in civil cases, 90% settled
can happen at any time
types of causes of action
express (law or contract)
implied (court recognizes claim)
new
influence of common law in modern legal system
property
contracts
torts
direct role of court system in managing public health risks
regulate people
regulate objects
regulate environment
indirect role of court system in managing public health risks
system to penalize behavior
bring actions against defendants
tort system for indirect regulation: 4 goals
assign responsibility
provide compensation for harm
deter harmful/risky conduct
encourage safe conduct
define tort
harm
define tortfeaser
someone or something that harms another
types of torts
negligence
intentional
strict liability
components of negligence
duty
breach
causation
harm
define duty re: negligence
defendant had duty of care, obligation to act or not consistent with some level of care
define breach re: negligence
defendant violated duty of care, failed to conform to level of care
define causation re: negligence
violation caused harm
define harm re: negligence
harm is meaningful and significant
elevated duty
professional duty of care
law
nature of relationships
intrinsic nature of risk
define proximate cause
legal causation
define damages
compensation to punish wrongdoer and make the plaintiff “whole”
define injunction
forcing other party to stop an action
define specific relief
forcing some other action
define strict liability
shift all burden of harm onto party doing the activity
need not prove negligence or harm, just that defendant performed activity
ex: blasting; dangerous animals; defective products
role of judge in courtroom
make decisions about law, set relevant rules in jury instructions, decide what evidence is admissible
role of juries in courtroom
make decisions about fact, helped by expert witnesses
process of civil litigation
harm complaint filed answer filed discovery motions submitted/argued judge decides trial/appellate/SCOTUS verdict
define mediation
agreed by both parties to facilitate settlement
makes recommendation but parties not required to follow it
arbitration
makes final decision, parties required to follow it
define deposition
interview under oath
define motions
request to judge to make a decision about some element of case (evidence, final decision)
define private right of action
individual(s) can bring claim to enforce a Federal law
sovereign immunity
“rex non potest peccare”
gov’t cannot be sued for torts unless waived immunity
officials can be sued as individuals IF grossly ignore law
sovereign immunity exceptions
Federal Tort Claims Act
42 USC S 1983
State law exceptions
Federal Tort Claims Act
may allow claims for harms suffered d/t gov’t action
42 USC S 1983
from Civil Rights Act
allows individuals to sue gov’t agencies for violations of “rights, privileges, or immunities secured by Constitution”
define assumption of risk
individuals can’t recover damages if they understand risks r/t activity
contributory negligence
individuals can’t recover damages if they contribute to harm
three principles of police power
promote the public good
permit restriction of private interests
scope is pervasive
examples of police power for public health
clean water clean air regulation of food regulation of alcohol professional licensure facility licensure zoning laws
key themes of use of police power in Jacobson v. Massachusetts
social contract theory
harm principle
public health necessity
reasonable means and proportionality
social contract theory
manifold restraints to which every person is necessarily subject for the common good
state laws re: mandatory vaccination
daycare or school
some state colleges
employees of some healthcare facilities
foster care
federal laws re: mandatory vaccination
military
immigrants applying for permanent residence
federal funding for vaccination
Vaccines for Children program
medicaid requires vaccines at no-cost
many health insurance policies prohibit co-pay for vaccines
Philadelphia Immunization Code
whenever necessary to control spread of disease, Department may require immunization of any person
cannot attend school (except college university)
National Vaccine Injury Compensation Program
no-fault system that pays for injuries caused by vaccines
funded by Compensation Trust Fund tax on each vaccine
anyone can show vaccine caused injury
special masters at Federal Claims Court decide how much money is owed based on Vaccine Injury Table
Harm Principle
idea of “social contract”
ex: trash disposal; quarantine and isolation; hazardous industrial practices; criminal laws
types of public health law overreach aka Jacobson Creep
use as pretext for consciously discriminatory or other corrupt reasons
“good” faith, but misguided use
parens patriae re: mandatory reporting
child abuse
adult abuse (not domestic)
elder abuse
parens patriae re: children
parents are legal representatives of their children
laws designed to support and protect children
parens patriae re: rights of parents
parental immunity doctrine
SCOTUS recognizes certain fundamental rights, including rights of parents to make certain decisions of behalf of children
parental immunity doctrine
children cannot sue parents for negligence
rooted in rights of parents and concerns about collusion
generally accepted interventions by gov’t when parents’ choices harm child
court-ordered blood transfusions
foster care system
philosophical basis for parens patriae
“Against these sacred private interests, basic in a democracy, stand the interests of society to protect the welfare of children…”
–Prince v. Mass, 321 U.S. 158 (1994)
corporal punishment around world
U.S. is only member of U.N. that has not ratified the Convention on the Rights of the Child
parens patriae re: adolescents
legally treated as children for some purposes and adults for others
parens patriae re: adolescent medical decision-making
can consent to specific treatments
minor parents have right to make all decisions on behalf of their children
parents patriae re: adolescent criminal acts
PA does not have minimum age for trying a child as an adult
Juvenile court available for only some offenses
types of paternalism
soft - facilitating healthy decisions
hard - forcing healthy decisions
why does paternalism make sense?
bounded rationality
individual harms carry external costs
why is “soft” paternalism attractive
humans poor at assessing and managing risk
biases and heuristics run rampant
evidence of “nudging” people towards healthier decisions
why is “hard” paternalism attractive
repulsed by idea of self-harm
we think we know better than individuals about what makes them healthy
14th amendment
…nor shall any state deprive any person of life, liberty, or property, without due process of law
state-created danger test
1) harm foreseeable and direct
2) degree of culpability that “shocks conscience”
3) special relationship
4) agent rendered citizen more vulnerable than if they had not acted at all
negative Constitution
Constitution creates few affirmative duties; mostly limits interference by government
Constitutional right to healthcare?
nothing in Constitution
some state constitutions address health and well-being but do not guarantee services
laws designed to promote health care access despite not being a Constitutional right
EMTALA
Medicare/Medicaid
FQHCs
federal and state-based programs
examples of gov’t power to act in interest of public health
mandatory vaccination
mandatory reporting
public health regulations
examples of gov’t having few duties and rarely liability for failing to protect health and safety
sovereign immunity
negative Constitution
state-created danger doctrine
