Dr Fiona Lander is a medical doctor and law graduate based in Melbourne, Australia. In this, her first post for TGH, she explores the concepts around effective public health regulation, including the new global initiatives in health law, and questions the limits of lawmakers’ powers to constrain individual liberties in the name of health.
Public health law has come a long way from its beginnings in the original health acts of the 19th century, focussing on condition of sanitation and noxious environments. Now, most high-income countries (and a substantial proportion of low and middle-income countries) have enacted more or less comprehensive legislation around control and reporting of infectious disease; quarantine; food hygiene, and so forth.
These laws operate quietly in the background to greater or lesser extents throughout the world, and are an integral part of any country’s strategy around preventive health.
Many countries, though, are now also seeking to regulate risk factors relating to non-communicable diseases (NCDs) such as cancer, diabetes and heart disease, which were once thought to be the subjects of individual choice and responsibility – and in the minds of many, still are.
The regulation of risk factors around these illnesses previously referred to as “lifestyle diseases” is now also occurring on a global scale. For instance, the Framework Convention on Tobacco Control (the first global health treaty concluded since the International Health Regulations were introduced in 1969!) contains comprehensive recommendations in relation to implementation of laws regulating tobacco use, which are all designed to reduce the harms associated with smoking.
These, and other, legislative changes often lead to an outcry from proponents of individual responsibility; they lament the “nanny state” mentality taking over the country, and the world. The view of those who rail against overregulation seems to be that all individuals are rational self-maximisers, whose decisions to take risks with their health are always well-informed, and influenced by evidence.
The problem is that this assumption that people will always act reasonably, and in their own best interests, simply isn’t correct! Humans are imperfect. Our environments often have a far greater impact on our health than the amount of evidence we are presented with through health promotion campaigns. Put simply, an environment in which it is substantially harder for an individual to engage in unhealthy behaviours will be much better for that individual – and, of course, will save enormous amounts of future expenditure on healthcare.
This is where the law plays an important role in levelling the playing field. A substantial number of the myriad public health laws that operate to protect our health – the regulations around safe food preparation in restaurants, the taxes on tobacco, the laws around seat belts – have been shown to be effective in reducing health-related morbidity and mortality.
I agree that simple rules don’t fit a complicated world. I agree that some areas are overregulated, without sufficient flexibility to avoid absurd outcomes. I agree that certain laws may be overly paternalistic. But the problem is that extreme examples of absurdity are, on occasion, held up to argue against all regulation, without acknowledging the substantial benefits we receive as a society from certain limits being placed on our civil liberties. It is important that the risks and benefits of any new approach are fully debated, so that it cannot be claimed that such interventions undermine liberal democracy. Media coverage of both sides of the debate is a good starting point.
It is obvious that more research needs to be done in establishing an evidence base in this area, to ensure that laws genuinely achieve their stated goals without infringing too much on people’s liberties. But this needs to be balanced by an acknowledgement that, in some areas, evidence attributing a drop in morbidity and mortality to one particular law will be difficult or impossible to obtain. Insistence on evidence should not preclude enactment of appropriate regulation.
An important thing to recognise is that, in many regions, these regulations operate so efficiently and silently that it is too easy to forget that they have not always existed. For me, two years living in India was enough to make the value of such laws – and their enforcement – very obvious. In the majority of countries, laws concerning public health either don’t exist or simply aren’t enforced, and basic activities of daily living become risky, or even downright dangerous.
It is a lesson I will not forget quickly.
Enactment and enforcement of public health laws are incredibly important steps in achieving the highest attainable standards of mental and physical health for a population. More cooperation is needed to ensure low and middle-income countries catch up to high-income countries in this respect, and that new legislative challenges relating to issues such as prevention of NCDs are tackled comprehensively, without unnecessary imposition on individual liberty.
There will be significant challenges in this balancing act, but if these issues are approached collaboratively by states, the corresponding benefits for individuals will likely be much greater.
Dr Fiona Lander holds degrees with dual honours in Medicine/Surgery and Laws from Monash University. She works in the areas of intellectual property and pro bono law, alongside her medical practice in the field of emergency medicine. Fiona previously worked in India as Senior Officer assisting the United Nations Special Rapporteur on the right to health, and has also worked with the Health and Human Rights team of the World Health Organisation in Geneva, Switzerland. She is the founder of the Health and Medicine working group at the Henley Club, Melbourne.