Am I my brother's keeper? A proposal to determine state governments' affirmative duty to advance public health.
Subject: Public health (Economic aspects)
Public health (Evaluation)
Economic development (Mississippi)
Economic development (Evaluation)
Economic development (Health aspects)
Authors: Ryan, Kevin W.
Card-Higginson, Paula
Thompson, Joseph W.
Pub Date: 06/22/2008
Publication: Name: Journal of Health and Human Services Administration Publisher: Southern Public Administration Education Foundation, Inc. Audience: Academic Format: Magazine/Journal Subject: Government; Health Copyright: COPYRIGHT 2008 Southern Public Administration Education Foundation, Inc. ISSN: 1079-3739
Issue: Date: Summer, 2008 Source Volume: 31 Source Issue: 1
Product: Product Code: 8000120 Public Health Care; 9005200 Health Programs-Total Govt; 9105200 Health Programs; 9008000 Economic Programs-Total Govt; 8515300 Development NAICS Code: 62 Health Care and Social Assistance; 923 Administration of Human Resource Programs; 92312 Administration of Public Health Programs; 926 Administration of Economic Programs; 5417 Scientific Research and Development Services SIC Code: 8000 HEALTH SERVICES
Geographic: Geographic Scope: Mississippi Geographic Code: 1U6MS Mississippi
Accession Number: 180948030
Full Text: The authors of the other articles in this journal present a compelling case that not only is the economic well being of states in the Delta causally related to the health of those who live and work there, but also that attained improvements in the health of the population can directly result in improved economic conditions for Delta residents.

Such "return on investments" arguments supporting governmental interventions are relatively novel, although not without some precedent. Historically, most publicly (as well as privately) financed imperatives to improve health outcomes among the poor were primarily driven either by charitable principles or to obtain political favor among the electorate. In this special issue of the Journal of Health and Human Services, the rationale for attaining economic advancement through targeted spending on health is strengthened. Regardless of whether or not the impetus for spending on public health arises from a charitable or political imperative or to fuel the engine of economic development, actions taken by government officials in the interest of public health are a result of a discretionary decision, i.e., governments may elect to undertake a public health intervention, but there is often no requirement to do so. However, in addition to the aforementioned voluntary government action initiators, we posit that a fourth rationale can be described and should be considered for development to support governmental actions intended to improve public health--an affirmative duty of governments to act in pursuit of public health.

Case law supporting an existing affirmative duty by public officials to act to improve public health is mixed and contradictory and largely does not support such duty to act. However, in light of the threat of individual and public health harm presented by, for example, the obesity epidemic and empiric evidence demonstrating that interventions have shown promise to ameliorate this threat, can a legal duty be described that is affirmatively enforceable concerning governmental public health acts and interventions? If such a legal duty is not readily apparent, is there a process through which it can be more clearly delineated?

With this paper, we propose a process whereby the citizens of Delta states convene publicly to create a public health standard of practice and a corollary enforceable duty to act by states to protect the public health.

THESIS

Some policy makers and stakeholders have previously described "public health malpractice" as discretionary government decisions not to act despite the presence of documented health needs and availability of effective evidence-based interventions. Are such allegations mere rhetoric or is there substance underpinning the concept?

Interventions by states are legally authorized either under their parens patriae powers, which enable states to take actions that protect the disabled, the infirm or minors, or as an exercise of police powers (United States Constitution, 10th Amendment, 1787), which provide state governments authority to act to protect and advance the public's health, welfare, safety, and morals (Jacobson v. Massachusetts, 1905; Gostin, 2000, 2007). Numerous federal and state courts have referred to state police power as the single most important authority to act that governments possess (City of Little Rock v. Smith, 1942).

Historically, the decision by state officials to exercise their police power authority has been viewed as discretionary. In this model, penalties may attach to a state if it fails to exercise its power properly, but little recourse is available when states do not exercise this power at all. Many courts and legal scholars have held that state government officials generally have no duty to affirmatively intervene on behalf of an individual to protect his or her well being (see generally The Slaughterhouse Cases (1873), DeShaney v. Winnebago County (1989), and Town of Castle Rock v. Gonzalez). These cases, notably the latter two, hold that generally the state does not have affirmative responsibility to protect citizens from violent acts committed by private actors.

However, court rulings have been mixed regarding the question of a state's responsibility to exercise its police power to proactively intervene to protect its population in the aggregate. Taking an affirmative stance on this issue, the Arkansas Supreme Court stated its opinion on the supremacy of state police power in City of Little Rock v. Smith (1942) when it held that, concerning public health threats to populations, a state may actually have an affirmative duty to act to address such harms.

What is the correct interpretation of state officials' authority and responsibility to act to protect the public's health? Policy makers and researchers have stated that failure by governments to act in the face of public health crises constitutes "public health malpractice." Former U.S. Surgeon General C. Everett Koop, in testimony before Congress regarding the failure to pass certain tobacco control legislation, said that what Congress had done was "... public health malpractice, plain and simple. Ignoring the advice of every health professional in America, they have chosen to listen only to a handful of television ads and a lot of PAC committees. I hope that the Senators who derailed this bill today lose sleep every night listening to the sound of children taking their first puff and the sound of emphysema and cancer patients gasping for their last breath." (Former U.S. Surgeon General C. Everett Koop in testimony before Congress regarding the failure to pass certain tobacco control legislation. June 17, 1998.)

We recently examined this concept of public health malpractice by drawing analogy to medical malpractice tenets (in which a provider may commit malpractice if either the provider's action or inaction results in harm to someone to whom the provider has a duty) and stated that "the question [of a state's duty to act] when framed in a malpractice context is whether the power to act equates with an enforceable federal duty to protect the health of the population" (Ryan, Card-Higginson, Shaw, Ganahl, & Thompson, 2007).

Several questions arise from this position. Do the defining parameters of individual medical practice translate to the broader world of public health threat and response? Do state officials in the Delta have a responsibility to their respective populations to proactively address public health harm, or should the decision to pursue state action remain discretionary? For example, should states take action to protect the public against the threats posed by the current childhood and adolescent obesity epidemic and should there be an affirmative duty to undertake such action?

Evidence suggests that the burgeoning obesity threat can be arrested by implementing statewide and coordinated school-based programs (Arkansas Center for Health Improvement, 2007; Ryan, Card-Higginson, McCarthy, Justus, & Thompson, 2006; Thompson, Shaw, Card-Higginson, & Kahn, 2006). Although some states have created and are in the process of implementing such comprehensive programs, most still have not. (Encouragingly, there are many active obesity intervention programs at the community level--we are hopeful that these will expand to state-wide initiatives if initial results are positive. Except for state level officials confronted with similar threats to the health of their respective populations, does lack of action in the face of a public health crisis constitute public health malpractice? Should it?

Ultimately it is up to the states and their populations in the Delta (and other regions) to decide whether or not to address this issue of public officials' affirmative duty to act and, if so, how. Three pathways of determination are possible. First, inaction--likely, many states will do nothing, effectively embracing the status quo that state official responsibility to address public health threat is discretionary. Second, interest and advocacy groups may choose to employ the recourse of a court challenge (e.g., bringing a class action suit against a state, agency, or public official alleging inaction resulted in harm to the public). We feel that the first alternative is unacceptable due to the clear and present danger obesity has for public health, the availability of interventions (with some evidence of potential efficacy) and existence of case law at least somewhat supportive of public official duty to act. The second pathway is also less than ideal. Class action suits are expensive and time consuming, with results not guaranteed to be optimal for public health improvement.

However, we believe that a promising third path exists. The people of a state have the power to create an enforceable duty to act for public health officials and set the parameters of this duty. We believe this can and should occur through a process of public issue awareness, expert testimony, informed discussions, consensus building, and legislative statutory enactment. Engaging in this type of public debate, affording all viewpoints fair and equitable representation, can result the creation of a public health standard of practice for states and officials inclusive of an accompanying positive duty to act in the presence of a public health threat. Importantly, carrying out this process in an open and transparent manner will result in commonly understood boundaries and parameters of this standard of practice and duty to act, lessening the need for subsequent court challenges and interpretation.

While we endorse this third alternative of legal mandate creation, we are cognizant that initiation of this process in Delta states will require significant effort to activate and to maintain the process to its conclusion. It is likely that many states will elect not to address this question. Unfortunately, these state governments will miss an opportunity to engage with their citizens in a robust and worthwhile public discussion regarding rights, responsibilities, and duties.

CONCLUSION

The Institute of Medicine has defined public health as "what we, as a society, do collectively to ensure the conditions in which people can be healthy" (Committee for the Study of the Future of Public Health Division of Health Care Services Institute of Medicine, 1988). In a related fashion, Professor Lawrence Gostin defines public health law as the "authority and responsibility of the government to assure the conditions for the population's health" (Gostin, 2000).

As noted above, public health interventions are initiated through either discretionary impulses (philanthropic, political, or economic) or legally mandated governmental acts. While elective actions by public officials to undertake public health improvement are laudable and should continue to be encouraged, their voluntary underpinning means that action is neither assured nor guaranteed and, as a result, public health improvements may be less rational, integrated, and efficient than if actions were undertaken as elements of a broad mandate to act.

Because it involves restrictions on individuals and requires addressing population-based needs, only the government (through its police power authority) has the ability and resources to mandate interventions to improve the public health. Assurance that state governments and officials will preemptively act to protect the public's health can only be found through a legally imposed affirmative duty to act. While sufficient legal precedent to find that the government has a proactive duty to act arising from its state police power authority may already exist, without express government and public official acknowledgement and acquiescence, enforcement of that duty may prove costly, and results of a legal challenge are not predetermined.

Hence, we propose that states create through an open process an express and affirmative duty for government action to improve public health and that the elements of this duty be detailed (e.g., the duty to act is triggered by public health threat, governments are to employ evidence-based interventions, etc). By no means of course, do we wish to subvert the democratic process or require that governments act in a knee-jerk manner. For example, when faced with a hypothetical public health issue, state government operating under an affirmative duty to act, may upon consideration conclude that potential public health improvement obtained by an intervention is outweighed by its cost and instead proceed with a decision to monitor and potentially intervene at some future date should conditions warrant. Affirmative duty to act should not automatically equate to potentially expensive program creation. Instead, affirmative duty to act should mean that governments have a responsibility to monitor for public health threats, consider if the threat is addressable, and to intervene if the health improvement gained by the intervention outweighs the cost (in dollars and restrictions placed on individuals).

We are cognizant and aware that our proposal is not without risk. The decision to advance public health through restriction of individual freedoms should not be undertaken lightly or without knowledge of past draconian applications of this concept that have been carried out at the expense of disadvantaged individuals and groups in our society (e.g., Buck v. Bell) in which eugenicists passed laws allowing forced sterilization of individuals with low IQs or the establishment of Japanese internment camps during WWII). Indeed, past misapplications of this authority provide strong support for making the process of developing public health policies transparent to limit situations in which a "tyranny of the majority" is able to implement nonevidenced-based restrictions on individual rights. Improvements in public health that flow from restrictions on individuals have the greatest potential for long-term success when those restrictions are broad based and do not differentially target any group or population sub-set.

We are also aware of and appreciate that exercise of state police powers to improve the public health almost always involves some restriction of individual liberties and often, individuals' abilities to freely elect to participate in otherwise legal activities. This struggle between individual rights and the public's right to be free from harm is at the very core of public health.

A logical question arises about when the duty to act by public officials should be triggered. Ideally, each state that undertakes our proposed process to develop a public health standard of practice will address this. At a minimum, we suggest that a duty to act by states arises when two conditions are present: a substantive public health threat and empiric data supportive of an intervention's potential to ameliorate that threat. Unless both conditions exist, no duty to act should be found. Incorporation of this two-pronged requirement should lessen fears by states that our proposal could result in open-ended liability for non-action by their respective agencies and officials.

In making this recommendation for a public and transparent process to determine the proper scope of police power authority to improve health in the Delta, our overarching goal is not to create a new cause of action for the plaintiffs' bar or to engage in a purely academic exercise; instead, we seek to stimulate positive dialogue between state policy makers and the citizens whom they represent and serve. Ultimately, the interactive process we propose can result in a more thorough understanding and agreement regarding both the health needs of the Delta and the public resources that can be utilized to address them.

REFERENCES

Arkansas Center for Health Improvement. (2007). Assessment of Childhood and Adolescent Obesity in Arkansas: Year Four (Fall 2006-Spring 2007). Retrieved October 2, 2007 from http://www.achi.net/BMI_Info/Docs/2007/Results0 7/ACHI_2007_BMI_Online_State_Report.pdf.

Buck v. Bell, 274 U.S. 200 (1927).

City of Little Rock v. Smith, 204 Ark 692 (1942).

Committee for the Study of the Future of Public Health Division of Health Care Services Institute of Medicine. (1988). The Future of Public Health. Washington, D.C.: The National Academies Press.

DeShaney v. Winnebago County Social Services Department, 489 U.S. 189 (1989).

Foxhall, K. (2006). Beginning to begin: reports from the battle on obesity. Am J Public Health, 96, 21062112.

Gostin, L. O. (2000). Public Health Law: Power, Duty, Restraint. Los Angeles: University of California Press.

Gostin, L. O. (2007). Law as a tool to facilitate healthier lifestyles and prevent obesity. JAMA, 297, 87-90.

Jacobson v. Massachusetts, 197 U.S. 11 (1905). Lavizzo-Mourey, R. (2007). Childhood obesity: what it means for physicians. JAMA, 298, 920-922.

Ryan, K. W., Card-Higginson, P., McCarthy, S. G., Justus, M. B., & Thompson, J. W. (2006). Arkansas fights fat: translating research into policy to combat childhood and adolescent obesity. Health Aff (Millwood), 25, 992-1004.

Ryan, K. W., Card-Higginson, P., Shaw, J. L., Ganahl, S. A., & Thompson, J. W. (2007). Public health "malpractice" and the obesity epidemic. Public Health Rep, 122, 414-416.

The Slaughterhouse Cases, 83 U.S. 36 (1873).

Thompson, J. T., Shaw, J. L., Card-Higginson, P., & Kahn, R. (2006). Overweight Among Students in Grades K--12--Arkansas, 2003--04 and 2004--05 School Years. Morbidity and Mortality Weekly Report, 55(01), 5-8.

Town of Castle Rock v. Gonzalez, 545 U.S. 748 (2005).

United States Constitution, 10th Amendment, (1787).

KEVIN W. RYAN

PAULA CARD-HIGGINSON

JOSEPH W. THOMPSON

University of Arkansas for Medical Sciences
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