Question

In 5- to 7-pages, discuss the impact of changing legal and regulatory environments on public health practice; the advantages and disadvantages of collaboration among public health organizations; and perspectives on the benefits, costs, and burdens of public health programs.

Answer 1

The processes involved in reforming or introducing new public health laws are critical to the legitimacy and success of law reform efforts. “Process”, it refers to the practical steps that governments and other stakeholders take to advance the goal of law reform, within the political context of each country. In addition to discussing these practical steps, it points towards the principles of good governance that the process of law reform ought to reflect. The law reform process provides the opportunity for lawmakers to consult with stakeholder groups and others who will be affected by the law and to build public support for the changes that are required. This can improve the implementation of the law and compliance with legal requirements.

Explaining the context of public health law reform distinguishes between the following three activities:

• Health legislation review: this is the formal process of reviewing public health laws, either generally or in a specific area, and assessing the need for reform.
• Implementing recommendations from a legislative review: this is the process of designing and drafting public health laws. It also includes the political process of passing legislation through parliament, as well as arrangements for the implementation and enforcement of laws.
• Designing the review process: ensuring good governance throughout the process of reviewing, drafting and amending public health laws.

The decision to review existing public health laws or to introduce new laws will be made for quite specific purposes. As a result, the scope of the legislative review process may be narrowly defined.

The process of reviewing public health laws may provide the opportunity to identify priorities for legislative reform, based on evidence of the burden of disease in each country and the major health issues that each country is facing. Despite the differences between them, many low- and middle-income countries face remarkably similar health challenges. These include the need for legal frameworks to respond effectively to HIV, to epidemics of contagious disease, to the major risk factors for the rising burden of noncommunicable disease (including tobacco use, harmful use of alcohol, poor diet and obesity), and to the large burden of preventable injuries.

Although law reform is primarily the responsibility of the government, civil society organizations can make an important contribution by educating the community about the need for reform, and by mobilizing political support for law reform within government. In some countries, political and legislative mechanisms facilitate the direct participation of the community in the development of health policy. These mechanisms, as well as public interest litigation, can act as triggers or catalysts for the reform of public health laws.

After it has made a formal commitment to implement recommendations from the legislative review process, government will face the challenge of translating those recommendations into effective public health legislation. The process of designing and drafting new laws will benefit from a good understanding of the range of legal strategies that are available to governments to improve public health and to implement policy recommendations. Chapter 4 reviews some of the components or characteristics of effective public health laws. Governments that have chosen to amend their public health laws should ensure that the law provides a clear mandate for public health actions and sets out the powers and responsibilities of public health officials clearly. Other issues for consideration include the need for coherence between public health laws and laws administered by other ministries, and the need for human rights safeguards (such as protection from discrimination) to be built into public health laws.

The process of formally reviewing public health laws, drafting new ones and gaining parliamentary or executive approval for new laws, is complex and will often be subject to political pressures. Lawmakers will need to comply with parliamentary (or other law-making) rules and procedures. This includes resisting efforts to corrupt the law-making process, and implementing the principles of accountability, transparency and respect for the rule of law. In some cases, the public health goals that a government is seeking to achieve will require a collaborative approach between the health ministry and other ministries. This may lead to formal consideration of how best to facilitate and coordinate an intersectoral approach to addressing public health priorities. Globally, there is growing awareness of the importance of coordinated, intersectoral action to improve public health and to reduce health inequalities.

The advantages and disadvantages of collaboration among public health organizations

Laws that protect the health of the population may be organized and administered quite differently in different countries, depending on historical and constitutional factors, and the specific health challenges each country has faced in the past. The concept of public health law is not limited to laws regulating the provision of health care services, but extends to the legal powers necessary for the State to discharge its obligation to realize the right to health for all members of the population.

• The scope of any formal review process of public health legislation may vary widely according to the political and legal context and priorities of each country.
• The capacity and willingness of governments to amend or replace public health laws, based on the recommendations of a formal legislative review, may be affected by the political ideology of the government concerned, the political feasibility of reform proposals, competing legislative priorities and available resources.
• When implementing law reform recommendations, governments should plan to monitor and evaluate their impact. This will involve identifying indicators that are suitable for tracking the impact of the law on relevant practices and health outcomes.
• Governments may need to set national priorities and to implement public health law reform recommendations in a stepwise manner, dedicating resources tow a smaller number of costeffective reforms that will deliver the greatest overall health benefits, and working towards implementation of a broader set of reforms as resources allow.
• Countries may use a variety of different forms of regulation to regulate health risks and other health matters. These include legislation, subsidiary regulations, decrees and executive orders, as well as guidelines and codes of conduct. Governments may adopt forms of co-regulation that formally include the participation of industry or professional bodies and/or civil society organizations. Governments may also defer to customary law as a valid source of law, or declare it to be the governing source of law in certain contexts.
• In considering whether public health law reform is appropriate, and whether self-regulatory codes and guidelines, or co-regulatory schemes, are failing to achieve public health goals, independent monitoring and evaluation are critical.

The Constitution of WHO makes it clear that health is not only about the absence of disease or infirmity, but is a complete state of physical, mental and social well-being. Similarly, the concept of public health law is not restricted to laws that regulate the provision of health care services, but includes the legal powers that are necessary for the State to discharge its obligation to realize the right to health for all members of the population. Laws that protect the health of the population may be organized and administered quite differently in different countries, depending on historical and constitutional factors, and the specific health challenges each country has faced in the past. These may include laws that regulate food safety, tobacco control, environmental sanitation, registration of pharmaceuticals, the registration of health practitioners, sexually transmissible infections, the management of communicable diseases, quarantine, public health emergencies, collection and management of health data, the powers and functions of public health officers, and the performance of public health functions by local and regional governments.