 This health law primer is one in a series of lectures that have been developed by the Health Law Institute at Dalhousie University. The focus of today's lecture will be the role of law in promoting and protecting public health. When I speak of law in this context, I'm primarily referring to legislation and regulations, or state-made law, which is supplemented by judicial interpretation of these laws. I'm Elaine Gibson, Associate Professor of Law at the Health Law Institute and Faculty of Law at Dalhousie University. We're going to be examining the nature of public health law, then we'll look at which level of government takes responsibility for enacting public health laws. Next, we'll review the historical and contemporary areas of state intervention to protect public health, and in what ways the state can act. The different means employed to address public health issues. We'll conclude with the values at stake and the tensions between these values that need to be considered by those vested with drafting public health laws and those who interpret those laws. Before we get to public health law itself, we need a working definition of just what public health is. The Institute of Medicine describes it as follows. Public health is what we as a society do collectively to assure the conditions for people to be healthy. Let's look at this a bit more closely. Note the reference to society and to collective. Public health operates at the societal level, unlike much of day-to-day health care delivery. Public health certainly impacts on individuals, but its focus is definitely at the macro and not the micro level. Note also that there's no promise of good health. Rather, the promise is to assure the conditions for people to be healthy. In other words, to lay the groundwork. No one can promise the health of a population. Now we're ready to ask what is public health law? We'll start with a very basic definition as described by Larry Gostin. The legal powers and duties of the state to ensure the conditions for people to be healthy. So the fundamental focus is on the role of the state or government in using its powers and respecting its duties in the area of public health. How? By ensuring the conditions for people to be healthy. But this isn't the end of the definition. Gostin refers also to limitations on this power. It is in this portion of the discussion that we start to see a number of the values at stake in public health law. First, there's an implicit acknowledgement that public health aims to serve the common good. In doing so, it is bound at times to constrain individual autonomy, privacy, and even liberty. So public health law requires a balancing of individual rights and the common good. There are limitations on the authority of the state to undertake public health initiatives, even if motivated by or aiming to serve the public good. At which level of government does a public health intervention take place? At the international level, Canada is signatory to the international health regulations, which place obligations on member states to provide information as to outbreaks of infectious disease with potential pandemic implications. Within Canada, it can be at any of the federal, provincial, or municipal level. The Constitution defines to some extent the appropriate level. Governments make law by enacting legislation, also referred to as statutes. This can be federal or provincial territorial, depending on the vesting of power through the Constitution Act. At the federal level are powers over criminal law, such as knowingly transmitting HIV to a sexual partner, peace, order, and good government, which provides for emergency powers in case of a pandemic, and powers of quarantine. These are interpreted at the federal level as applying only to when someone is entering or leaving Canada. The lion's share of public health powers are vested at the provincial level. The provinces may delegate significant aspects of public health law enforcement to the municipal level. For example, food inspection in Ontario and BC is carried out by municipalities. You will need to become familiar with the public health laws of the province in which you practice medicine. Areas of state intervention, historical. There's a question mark in the middle of this slide. I want you to pause for a moment and think about what you would describe as quintessential areas of state intervention historically in matters of public health. Then we'll go on to the next slide. My guess is that you thought right away of infectious disease. Historically, the state has played a fundamental role in trying to protect the health of populations against dread diseases. Indeed, a number of the islands visible in the Halifax Harbor served as quarantine and isolation communities for people arriving from overseas on ships who were thought to be carrying infectious disease. And the state has served a major role in immunization of the population against the range of diseases and continues to do so. This has been a significant cause of controversy over the years as segments of the population have resisted mandatory immunization. An area not as often thought of in the context of public health is that of sanitation. The requirement of adequate sewer systems and the accompanying absence of raw sewage in our communities has dramatically improved our health status. Indeed, more so than any other advancement in medicine. Let's go on to look at contemporary areas of state involvement in public health. Infectious disease continues to be a plaguing problem, pardon the pun, with many newly discovered diseases of grave concern. The state has been involved in the licensing and inspection of food and drugs since the early 1900s, but this has gradually come to be conceived as a public health matter over the years. The state has increased its level of involvement in tobacco and alcohol control in recent years, as evidence mounts as to their deleterious effects, particularly with tobacco, which has few redeeming qualities. Now, obesity is certainly a huge public health concern, but Canadian jurisdictions have not yet chosen to regulate other than through labeling of ingredients and caloric and fat content. Accident and injury prevention are newly seen to fall within the fold of public health in that how a society functions, think of the setting of highway speed limits, for example, determines the amount of accidental injury a society is willing to accept as a cost of doing business. And new to the scene is also the use of biological weapons for war and terrorism, placing security matters under the rubric of public health. Boston has developed a taxonomy of ways in which the state can choose to intervene in attempting to protect and promote public health. These are useful for our purposes in that we tend to think of public health law as being about direct regulation, which is last on this list. We will talk about direct regulation, but first we'll look at other methods government can choose to influence and promote the health of the population. We'll work through these one by one. Taxation, both tobacco other than on reserve sales to Indians and alcohol are heavily taxed by the state. Part of the aim of such taxation is to serve as a disincentive to use of these substances. Another use of taxation is on prepared food and beverages differing by province as an incentive for people to prepare their own foods from raw ingredients. Spending power, here are a handful of examples of how governments utilize their spending power to promote the health of the public. These include advertising in order to promote fitness, the provision of sports fields, equipment and parks so people will get out and exercise, and the inclusion of physical education in school curriculums. The development and recent revision of the Canada Food Guide is intended to guide Canadians as to healthy eating as are other types of nutrition education initiatives. Each of these is enabled by use of the public purse or spending power in the interest of public health. I'm going to be discussing three types of alteration of the environment. These are called informational, built and socio-economic. Now the informational environment in which we live. Think about the restrictions that have come in in recent years on tobacco advertising and sponsorship. Also note the messaging on cigarette packages. Last time you looked you would have seen not only strong wording but pictorial images of the hazards posed by tobacco use. I have also listed limits on TV advertising aimed at children. Only the province of Quebec has chosen to enact laws to limit commercial advertising aimed at children. This includes food and beverage advertising restrictions. The built environment. We construct the places we live with an eye in part to public health matters. Thus zoning bylaws help to protect us from excessive pollution levels in restricting where factories can be built. Occupational health and safety laws aid in workplace injury prevention. Building codes reduce likelihood of injury and aid at such times as escaping from a fire. We've discussed the dramatic impact of sanitation systems but I will also mention the provision of a safe municipal water supply as being of critical importance in guarding our health. How do we protect health vis-a-vis the socio-economic environment? Well the provision of social assistance and low income housing have direct effects on health status of those leased well off. So too are programs aimed at training those without readily employable skills such that they can hopefully pursue meaningful employment. Now we come at last to direct regulation. I'm going to use infectious disease control as our example here. Legislation in each province empowers medical officers of health in the event of suspicion or known presence of a notifiable disease to order a person or group of persons to undergo testing. If they test positively the medical officer of health can also force the person to undergo treatment. They can also order the person into quarantine which applies to those exposed but who have not yet developed symptoms or isolation which applies to those known to have contracted the disease. The medical officer of health can also compel the provision of information such as identification of contacts of the infected person. Depending on the province they may be authorized to contact those persons to warn them that they may have been exposed to the disease or they may order the infected individual to get in touch with their contacts. As you can see these powers are extensive and highly intrusive into the lives of individual citizens and these are just a few of the powers contained in direct regulation. How are decisions made to enact such laws? Both the legislatures and the courts who interpret these laws are needing constantly to juggle the common good as against individual rights. They also need to take into account concepts of social justice which may be taken to suggest that laws should only be enacted if they do not worsen the plight of those least fortunate in society. The courts in interpreting such laws tend to be deferential to the common good as shown in the next slide. Here we have the Ontario Superior Court of Justice giving a nod to individual privacy rights indicating that there will be due consideration but then indicating that the state objective of promoting public health for the safety of all will be given great weight. That concludes the presentation which was developed with the assistance of the Dalhousie Health Law Institute. Thank you for your time.