Ross D. Silverman, JD, MPH
Benjamin Mason Meier, JD, LLM, PhD
Message from the Chair
Welcome to the Fall 2009 issue of the APHA Health Law Special Primary Interest Group newsletter.
We are just weeks away from the 2009 Annual Meeting in Philadelphia (Nov. 7-11), and the Health Law SPIG has an outstanding and diverse array of sessions and presenters scheduled for this year’s meeting. You can find the full schedule of Health Law SPIG events at: http://apha.confex.com/apha/137am/webprogram/HLF.html. Please note that the Health Law SPIG annual business meeting will take place on Monday, Nov. 9, from 6:30-8:00 p.m. (immediately following the session on Global Health Governance). The room location for the business meeting, as well as the scientific sessions, will be made available in early October on the APHA Annual Meeting Personal Scheduler site to those registered for the conference. I hope to see you there!
Public health law and policy concerns are at the center of two pressing issues facing our nation today: health insurance reform, and the reemergence of novel H1N1. The issue of health care reform has been the hot-button political debate of the summer, marked by raucous town hall meetings throughout August, and the president taking his case to Congress and the public over the last several weeks (seasoned with the occasional discussion of decorum and race for good measure). The next few weeks should be a wild ride, now that all of the major Congressional committees have released their proposals and the president is continuing to push for the passage of a bill before the end of the year.
The national debate over health care reform also is notable for having suffered the recent loss of one of the most powerful public voices for universal health care, Senator Edward Kennedy. For more than 45 years, he served as a tireless champion for improving health care, education, the environment, workplace and public safety, and protecting the human rights of our most vulnerable populations. His invaluable leadership and contribution to such efforts as Head Start, the Americans with Disabilities Act, the Ryan White CARE Act, Meals on Wheels, Titles VII and IX, the State Children’s Health Insurance Program, the Nutrition Labeling and Education Act, raising the minimum wage, and the development of more than 1,200 community health centers around the nation, has resulted in a legacy that has touched nearly every household in the nation.
The reemergence of novel H1N1 this fall also has been met by vigorous planning at the national, state and local level. As I write this note, vaccine testing is nearing completion, and the rollout of the new vaccine to high priority populations is just days away. The prospect of battling both novel H1N1 and the seasonal flu also has led to more forceful efforts by hospitals, health systems and local and state health departments to encourage vaccination against seasonal influenza. This is especially notable for the focused efforts on vaccinating health care providers, who historically have fared little better in their uptake of the seasonal influenza shots than the general public (just more than half of all health care workers receive annual seasonal influenza shots). Concerned in part about how this lack of protection might affect highly vulnerable hospitalized patients, in August, the New York State Department of Health passed an emergency regulation mandating that health care personnel receive influenza vaccinations, limiting the exception to those for whom such shots are medically contraindicated. Charleston Area Medical Center in West Virginia and Loyola University Health System in Maywood, Illinois recently became the third and fourth hospital systems in the country to mandate seasonal influenza vaccination for their employees. Failure to receive the vaccination can result in termination.
Finally, in this issue of the Newsletter, you will find a substantive essay written by SPIG member Lance Gable, Assistant Professor at Wayne State University Law School. The essay, titled “Establishing Mental Health as a Human Right,” offers needed attention to the moral case for improving access to care (as well as coverage) for some of the most vulnerable and under-served members of our society.
Thank you as always to Ben Meier, now officially Assistant Professor of Global Health Policy at the University of North Carolina (congratulations, Ben), for putting together our newsletter. I look forward to seeing everyone at the Annual Meeting.
Ross D. Silverman, JD, MPH
Chair, Health Law SPIG
Professor and Chair, Department of Medical Humanities
SIU School of Medicine
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2009 APHA Annual Meeting Preview
Health Law SPIG
Monday, Nov. 9, 2009
10:30 a.m.-12:00 p.m.
Alcohol, Tobacco, Firearms, and Food: Reigning in the Big Four
2:30 p.m.-4:00 p.m.
Regulation of Food Marketing to Children
4:30 p.m.-6:00 p.m.
Global Health Governance
6:30 p.m.-8:00 p.m.
Health Law Forum Business Meeting
Tuesday, Nov. 10, 2009
8:30 a.m.-10:00 a.m.
Water and Law
10:30 a.m.-12:00 p.m.
Public Health Preparedness and the Law
12:30 p.m.-2:00 p.m.
Health Disparities: Law and Policy
4:30 p.m.-6:00 p.m.
4372.0 Law and Public Health: Late Breaking Panel
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Health Law in the News
Establishing Mental Health as a Human Right[i]
Lance Gable, JD, MPH
The goal of achieving good mental health remains an important global concern, although one that is often overlooked and undermined by policy-makers and politicians. Persons living with mental disabilities often face substantial obstacles to improving their mental health and participating fully in their communities and societies. They have been subjected to discrimination, stigmatization and other indignities, including involuntary confinement without fair process, inability to access needed care and treatment, and the erection of social and economic barriers that limit their opportunities.
The impact of these persistent human rights violations exacerbates the burden of mental disabilities throughout the population and may preclude persons with mental and intellectual disabilities from successfully seeking and obtaining mental health services. While these problems have received widespread recognition by international agencies and governments, human rights abuses continue to occur with frustrating regularity around the world. Paul Hunt, the former United Nations Special Rapporteur on the Right to Health, has described mental health as “among the most grossly neglected elements of the right to health.”[ii] Mental health services routinely receive inadequate funding from public and private sources,[iii] a deficiency often coupled with an absence of enforceable legal protections for persons with mental and intellectual disabilities.[iv]
Three pernicious myths about persons with mental and intellectual disabilities continue to impede efforts to eliminate discrimination, diminish stigma, and foster political support for mental health services.[v] The myth of incompetency relies on the false assumption that persons with mental disabilities cannot competently make decisions or grant consent. In actuality, mental disabilities vary substantially, and a continuum of competency exists. Policies that presume automatic or perpetual incompetency for mentally disabled individuals, or fail to assess separately a person’s competency with regard to specific services, decisions or functions, violate human rights.
A second destructive myth is the common misconception that persons with mental disabilities generally pose a threat to others. Research on this issue demonstrates that persons with mental disabilities have no greater propensity to commit violent acts than persons who do not have a mental disability.[vi] Nevertheless, the media often give disproportionate attention to the rare cases when a mentally disabled person commits a violent crime,[vii] and these sensationalized cases may increase stigma and provide the impetus to enact more punitive mental health laws.[viii] Such approaches threaten to eviscerate the right to mental health by enacting punitive measures instead of treatment.
The third myth invokes the misconception that the deinstitutionalisation movement resolved the human rights issues facing persons with mental and intellectual disabilities. With the advent of effective psychotropic medications in the 1960s, thousands of people with severe mental disabilities became able to receive treatment in the community, and were released from institutional settings.[ix] However, many of these medications had significant side effects when used in high dosages over long periods, and efforts to implement community care and treatment were undercut by ineffective planning and meager economic support.[x] Many mentally disabled people ended up homeless or in other institutions — jails, prisons, remand centers, and nursing homes — where they do not receive appropriate treatment, if any.[xi] In many countries around the world prisons have become the de facto mental health systems, leaving this population isolated, forgotten and deprived of their human rights.
The connection between human rights and health has gained increasing salience in international human rights law as norms and infrastructure have expanded across many jurisdictional levels, international to domestic.[xii] While most efforts targeting human rights violations related to persons with mental disabilities addressed infringements on civil and political rights involving liberty, dignity and to a lesser extent, equality,[xiii] more recent initiatives have tried to affirmatively establish mental health as an entitlement to the conditions necessary for good mental health. For example, General Comment 14 on the Right to Health[xiv] and the Convention on the Rights of Persons with Disabilities[xv] have articulated a right to health that includes underlying determinants of health and access to a panoply of mental health services in the community.
Utilizing these standards, persons with mental disabilities and their advocates could insist that governments deliver on their obligations related to the right to mental health, including the provision of community-based preventive mental health services, treatment facilities and rehabilitation services. Further, the establishment of a broad right to health increases the likelihood that national and local governments will augment the mental health services available to the public, undertake public education initiatives about mental and intellectual disabilities to reduce stigma, and implement other preventive and population-based mental health services and economic support.
Establishing and upholding affirmative mental health rights can fundamentally advance the dignity and welfare of persons with mental disabilities, and, simultaneously, advance the recognition and development of the right to health generally.
[i] This article is based on Lance Gable and Lawrence O. Gostin, Mental Health as a Human Right, in Andrew Clapham, Mary Robinson, Claire Mahon, and Scott Jerbi (eds.), Realizing The Right to Health: Swiss Human Rights Book Volume III 249-261 (Rüffer & Rub, 2009).
[ii] Paul Hunt, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attributable standard of physical and mental health, 11 February 2005, UN Doc. E/CN.4/2005/51.
[iii] World Health Organization, Mental Health Atlas 2005 (Geneva: WHO, 2005).
[iv] L.O. Gostin and L. Gable, ‘The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health’ 63(1) Maryland Law Review (2004) 20-121, at 44.
[v] L. Gable and L.O. Gostin, ‘Global Mental Health: Changing Norms, Constant Rights’ 1 Georgetown Journal of International Affairs (2008) 83-92.
[vii] M. Smith, ‘Role of the Popular Media in Mental Illness’ 349 The Lancet (1997).
[ix] Richard G. Frank and Sherry A. Glied, Better But Not Well: Mental Health Policy in the United States Since 1950 (Baltimore: The Johns Hopkins University Press, 2006).
[x] Robert A. Burt, ‘Promises to Keep, Miles to Go: Mental Health Law Since 1972’ in L.E. Frost and R.J. Bonnie (eds.) The Evolution of Mental Health Law (Washington, D.C.: American Psychology Association, 2001), 11-30; David L. Bazelon, ‘Institutionalization, Deinstitutionalization and the Adversary Process’ 75(5) Columbia Law Review (1975) 897-912.
[xi] G. N. Grob, ‘Mental Health Policy in America: Myths and Realities’ 11(3) Health Affairs (1992) 7-22; Gerhard Langle, Birgit Egerter, Friederike Albrecht et al., ‘Prevalence of Mental Illness among Homeless Men in the Community: Approach to a Full Census in a Southern German University Town’ 40 Soc Psychiatry Psychiatr Epidemiol (2005) 382-390.
[xii] L. Gable, ‘The Proliferation of Human Rights in Global Health Governance’ 35(4) Journal of Law, Medicine & Ethics (2007) 534-544, at 539.
[xiii] R.J. Bonnie, ‘Three Strands of Mental Health Law: Developmental Mileposts’ in L.E. Frost and R.J. Bonnie (eds.), The Evolution of Mental Health Law (Washington, DC: American Psychological Association, 2001) 31-54.
[xiv] Committee on Economic, Social and Cultural Rights, General Comment No. 14 on the right to the highest attainable standard of health, 11 August 2000, UN Doc. E/C.12/2000/4.
[xv] Convention on the Rights of Persons with Disabilities (2006).
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Institutional Changes: New Centers, Positions, Funded Projects, and Awards
Georgetown Law is thrilled to announce the launch of an innovative new LL.M. program in Global Health Law and International Institutions, jointly offered with the Graduate Institute for International and Development Studies in Geneva. Students will take courses at both institutions and enjoy access to internships with international organizations such as the World Health Organization, the World Trade Organization, and UNAIDS. Alternatively, students may opt to spend the full year at Georgetown in the previously established Global Health Law LL.M. program. Students may enroll part-time. Fellowships are available. For more information, contact Lindsay Wiley at (202) 662-9291 or firstname.lastname@example.org.
George J. Annas, JD, MPH, was named the first William Fairfield Warren Distinguished Professor at Boston University in May 2009. This university-wide professorship is the highest honor conferred by the university on a faculty member for extraordinary distinction in scholarship, teaching and service. Congratulations to Professor Annas!
James G. Hodge Jr., Lincoln Professor of Health Law and Ethics at the ASU Sandra Day O’Connor College of Law, recently was elected president of the Public Health Law Association (PHLA), a non-profit organization that seeks to advance the use and understanding of law to protect and improve the public's health. PHLA works collaboratively with other organizations on conferences/projects to provide opportunities to public health lawyers and practitioners to improve the practice of law and the public’s health through education, communications, and research. Professor Hodge has also recently been named vice-chair of the ABA Public Health Interest Group.
The GW School of Public Health and Health Services (SPHHS) is pleased to announce that Professor Joel Teitelbaum, JD, LLM, has been selected as a 2009 recipient of the George Washington University Bender Teaching Award for outstanding teaching. Bender award recipients are selected on the basis of demonstrated use of sound teaching practices, use of innovative technologies, student involvement and “intellectual excitement,” a strong commitment to student learning as evidenced by availability to students outside the classroom setting, and other criteria. The faculty selection committee reviews the nominations and letters of recommendation from students and faculty, student teaching evaluations, and teaching materials.
Melissa Goldstein, JD, associate research professor at the GW School of Public Health and Health Services (SPHHS), has been named an Aspen Health Forum Fellow by the Aspen Institute. The Institute is known for bringing world leaders and philosophers, executives, advocates, and scholars to the same table to exchange ideas, distill insights and share new knowledge that will lead to better health for everyone. The Aspen Health Forum, held at the end of July 2009, focused on medical science and its vital implications for patients’ lives, societal investments, and ongoing political interests.
The University of North Carolina at Chapel Hill is pleased to announce the appointment of Benjamin Mason Meier, JD, LLM, PhD, as an Assistant Professor of Global Health Policy in the Department of Public Policy and as an Adjunct Assistant Professor of Health Policy in the Department of Health Policy and Management. With public health courses in ethics, policy and human rights, Dr. Meier will also be serving as a Faculty Fellow in UNC’s Institute for Global Health and Infectious Disease and the Center for AIDS Research (CFAR). http://www.unc.edu/~meierb/.
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New Publications: Books, Articles, Reports, and Internet Resources
Lara Cartwright Smith, JD , assistant research professor & Sara Rosenbaum, JD, Chair and Hirsh Professor of Health Law and Policy at the GW School of Public Health and Health Services (SPHHS) , published in BNA an overview and analysis of laws regarding programs to rate, grade, rank, or tier physicians based on quality or other measures, focusing on the recently enacted "Physician Designation Disclosure Act." The article is available at http://www.gwumc.edu/sphhs/departments/healthpolicy/dhp_publications/pub_uploads/dhpPublication_D6B5F8C6-5056-9D20-3D55DB388672AB2F.pdf.
The Tobacco Control Legal Consortium has released two publications that address common questions raised about the new Family Smoking Prevention and Tobacco Control Act, which gives the U.S. Food and Drug Administration comprehensive authority to regulate the manufacturing, marketing, and sale of tobacco products: Federal Regulation of Tobacco Products: A Summary, Fact sheets on key provisions of the legislation; and Federal Regulation of Tobacco Products: Impact on State and Local Authority, Fact sheets on tobacco control measures state and local governments can take now that the FDA will regulate tobacco products and tobacco product marketing. The publications are available at www.tobaccolawcenter.org/fda-fact-sheets.html .
Ross D. Silverman's article "Litigation, Regulation, and Education — Protecting the Public’s Health through Childhood Immunization" appeared in the June 11, 2009 issue of the New England Journal of Medicine (360 N. Engl. J. Med. 2500 (2009)).
Boston University is pleased to announce the following publications: Wendy Mariner & Paula Lobato de Faria, eds., Law and Ethics in Rationing Access to Care in a High-Cost Global Economy (2009) ; Wendy Mariner, George Annas & Wendy Parmet, Pandemic Preparedness: A Return to the Rule of Law, 1 Drexel Law Review 341 (2009); Wendy Mariner, Toward an Architecture of Health Law, 35(1) American Journal of Law & Medicine 67 (2009); Catherine L. Annas & George J. Annas, Enhancing the Fighting Force: Medical Research on American Soldiers, 25 Journal of Contemporary Health Law and Policy 283 (2009); George Annas, Good Law from Tragic Facts — Congress, the FDA and Preemption, 361 New England Journal of Medicine 1206 (2009); George Annas, Protecting Privacy and the Public — Limits on Police Use of Bioidentifiers in Europe, 361 New England Journal of Medicine 196 (2009); George Annas, Globalized Clinical Trials and Informed Consent, 360 New England Journal of Medicine 2050 (2009); Leonard Glantz & George Annas, Handguns, Health and the Second Amendment, 360 New England Journal of Medicine 2360 (2009); Leonard Rubenstein & George Annas, Medical Ethics at Guantanamo Bay Detention Centre and in the US Military: A Time for Reform, 374 The Lancet 353 (2009).
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Upcoming Conferences, Meetings, and Calls for Abstracts
“Naked on the Net? The Future of Health Privacy in the Information Technology Age”
– Boston University School of Law and School of Public Health present the 6th Annual Health Law Program Conference, Saturday, Oct. 24, 2009, 9 a.m. – 4 p.m., Boston University School of Law, Boston, Massachusetts. Distinguished experts in law, medicine, insurance, and federal and state HIT policy will discuss how health information technology can be used to improve the quality of care and policy formulation, examine national incentives for HIT adoption, and analyze the murky and contentious legal principles governing privacy and information sharing in a range of contexts, including patient care, health promotion, mental health, genetics, physician prescribing, public health surveillance and research.
McDonald-Merrill-Ketcham Lecture/Indiana Health Law Review Symposium
Grappling with Financial Conflicts of Interest in Biomedical Research, Education, and Practice, Nov. 5, 2009
7th Annual Conference on Health, Disability, and the Law: Autism and Vaccine
Interdisciplinary Approaches to Medical Nanotechnology: Defining the Issues
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Health Law Newsletter Archives