Peter's Mental Notes
Tuesday, February 28, 2006
Minor Paper: What are the different roles of law in promoting and preventing health?
The following paper was submitted to Nancy Edwards and Michelle Giroux in the context of my Population HEalth 8930 seminar.
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This paper briefly discusses the concept of health, the legal powers of the State to promote health, and considers one notable example in the area of mental health, where the State may be preventing health.
The World Health Organization’s 1948 definition of health is “…a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”[i] While this definition has not been amended since its creation almost six decades ago, there has been considerable debate and discussion of how health is promoted or prevented.
Both public and population health are based on collective actions, including, but not restricted to policies, programmes, and perspectives, which are needed to create the conditions for a “state of health”. The Institute of Medicine (USA) has proposed the statement that “Public Health is what we, as a society, do collectively to assure the conditions for people to be healthy.”[ii] Much of what “we do” as a society is carried out by the State, thus it is important that there be considerable alignment between the concepts of “state of health” and “State in health”.
The “State” in Canada has several fundamental characteristics. First, it is a democracy: a government controlled (ideally) by the greater part of the people.[iii] Second, it has a (theoretically) representative government, with delegated authority to elected representatives who act on behalf of the bulk of the population and speak in their name.[iv] The government is also responsible, with close relationships between the executive (Cabinet) and the legislative (Parliament) branches of the government. The Prime Minister and Cabinet are at all times responsible to the House of Commons.[v] The fourth characteristic is that Canadian government is a federation with the broad powers of government distributed between a central government and provincial governments. [vi]
Next, the government of Canada accepts the principle known as the “rule of law”, which connotes that all acts “of government must be based on a law and not on the whim or caprice of the officials who may happen to be in authority.”[vii] The rule of law is protected by the sixth characteristic: the independence of the judiciary. All citizens have the right of appeal to the courts for protection, with the assurance that there will be assurance of finding justice.[viii] Finally, Canada is a sovereign independent state associated with others of equal status in the Commonwealth of Nations. [ix]
Health has been consistently listed as a major concern of Canadians.[x] It is within this complex and interdependent context that individuals pursue health goals - their actions, histories, and genetics; their elected representatives; the executive, legislative, and administrative branches of several tiers of government; the judiciary, and; external bodies and governments in an international context – are all part of the creation of health.
Professor Lawrence O. Gostin defines public health law as: “The study of the legal powers and duties of the State to assure the conditions for people to be healthy and the limitations on the power of the state to constrain autonomy, privacy, liberty, proprietary, or other legally protected interests of individual for the protection or promotion of community health.”[xi] In Canada however, health is not a topic specifically enumerated in the Constitution Act, 1867, and both the federal and provincial levels of government exercise legal authority in regard to public health concerns.[xii] This shared responsibility has led to considerable functional and jurisdictional confusion. This lack of clarity and friction can cause disputes between levels of governments, which can impede the speed of action in difficult situations. Given the complexity of health as a concept, the role of any partner/stakeholder/participant in the health of Canadians appears to shift according to the roles played by other players. It is not clear whether this appearance of shifting is based in reality or the perception of the observer.
The Supreme Court of Canada with regards to RJR-MacDonald Inc. v Canada, [xiii] limited the concept of “freedom of expression” and stated that the Charter was essentially enacted to protect individuals, not corporations. “At times it may be necessary to protect the rights of corporations so as to protect the rights of the individual. The courts must ensure that the Charter not become simply an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.”
Given the “shifting sands” found around the roles of the various players in the promotion of health, some clarity has been offered by Gostin, via a taxonomy of legal powers to protect and promote the public’s health[xiv]:
· tax and spend – e.g., tobacco taxes and health care spending
· alter the informational environment – e.g., restrictions on advertising
· alter the built environment – e.g., zoning, occupational safety, and housing codes
· alter the socioeconomic environment – decrease disparities
· direct regulation – e.g., quarantine, licenses, and inspections
· indirect regulation through the tort system – e.g., tobacco and firearm litigation
· deregulation – e.g., legalise distribution and possession of drug injection equipment
In the same document, Gostin has also listed the core values of the field of public health law as collective responsibility for health and well-being, a focus on population, the involvement of the community, an orientation towards prevention, and social justice. Elsewhere, he describes the characteristics of public health law as: a special responsibility of government, a focus on populations, a relationship between the State and the population, the provision of population-based services grounded on scientific methodologies, and, the power to regulate individuals and business for the protection of the community.[xv]
The examples offered by Gostin are all connected to health promotion. Yet ironically these are, examples where laws actually prevent health. This is never so apparent as within the realm of mental health. While those affected by a mental disorder are often accommodated by provisions which state that someone is unfit to stand trial. Or are spared by a verdict of “not criminally responsible due to a mental disorder”, the criminal justice system has in many ways contributed to a public mental health crisis. “Portions of our jails are now the “new asylums” but without many of the psychiatric resources available to mental health hospitals. A 1999 Alberta study found that a full 34% of male inmates in provincial jails suffer a serious form of mental disorder like schizophrenia or bipolar disorder and 22% have attempted suicide. Suicide is now the number one cause of death for Canadians in Correctional facilities.”[xvi] The situation in the United States is worse…each year about 700,000 adults with a serious mental illness come into contact with the criminal justice system …about 70% of those admitted to correctional facilities have active symptoms of serious mental illness.[xvii]
While cancer and diseases of the heart account for over half of deaths in Canada[xviii] most of these deaths happen in the latter part of life.[xix] According to Statistics Canada[xx], suicide and mental disorders tend to happen earlier in life and are thus associated with a greater loss of potential. There were 3,692 deaths reported as suicides in 2001, up 2.4% from 2000. Suicide rates differ between men and women, young and old. Men are more likely to commit suicide than women, with 3.5 suicides among men for every suicide among women in 2001. For men, the risk of suicide was greatest between the ages of 40 and 44. For women, the risk peaked at ages 45 to 49. Young people who report high levels of depression, anxiety or low self-esteem are more likely to report suicidal thoughts. In 2001, there were 234 teenage deaths reported as suicide. Since the 1980s, the suicide rate—12.2 per 100,000 people in 1999—has remained fairly constant for teens aged 15 to 19. For both sexes, suicide was the second-leading cause of teen death, surpassed only by motor vehicle accidents.
When one examines Gostin’s taxonomy of legal powers within the context of the WHO definition of health, is it reasonable to wonder whether one can assert that a hierarchy of priorities exists between the physical, mental and social aspects of health. This is clearly something to be examined. The confusion of roles and the multiplicity of legal actors is clearly shown in a 2001 study that found “clinically significant differences among the provinces and territories on all major components of their mental health acts.”[xxi] The study concluded that some Canadian mental health acts include provisions that prevent patients receiving appropriate clinical care.
Alternate provisions that support appropriate clinical care, that respect the human rights and personal dignity of patients, and that are consistent with the Canadian Charter of Rights and Freedoms can be found in the legislation of other jurisdictions. These differences may be in part due to what Hunsley describes as an approach by most psychologists and other mental health professionals towards the realm of public policy and law as perhaps best characterized as one of benign neglect.[xxii] Mental health is an important aspect of the overall health of Canadians and it is time to move beyond neglect to a serious, action-oriented investigation of the role of law in the provision of mental health services. At what point does benign neglect become criminal negligence?
[i] Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19-22 June, 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100) and entered into force on 7 April 1948 [cited 2006 Feb 5] . Available from: http://www.who.int/about/definition/en/
[ii] Institute of Medicine. The future of the public’s health in the 21st century. Washington, D.C.: National Academy Press, 2003.
[iii] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 3.
[iv] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 5.
[v] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 6.
[vi] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 9.
[vii] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 11-12.
[viii] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 13.
[ix] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 14.
[x] Standing Committee on Health: Health Canada - Main Estimates. Opening remarks for A. Anne McLellan, Minister of Health. Ottawa, May 7, 2002 [cited 2006 Feb 5]; Available from: http://www.hc-sc.gc.ca/ahc-asc/minist/health-sante/speeches-discours/2002_05_07_e.html
[xi] Gostin LO. Health of the people: The highest law? The Journal of Law, Medicine & Ethics 2004; 32(3): 509-515.
[xii] Ries NM. Legal foundations of public health in Canada. In: Bailey TM, Caulfield T and Ries NM, editors. Public health law and policy in Canada. Markham: LexisNexis Canada Inc.; 2005. p. 8.
[xiii] RJR-MACDONALD INC. c. CANADA (P.G.), [1995] 3 R.C.S. 199
[xiv] Gostin LO. The core values of public health law and ethics. In: Bailey TM, Caulfield T and Ries NM, editors. Public health law and policy in Canada. Markham: LexisNexis Canada Inc.; 2005. p. xi.
[xv] Gostin LO. Health of the people: The highest law? The Journal of Law, Medicine & Ethics 2004; 32(3): 509-515.
[xvi] Canadian Mental Health Association, Alberta Division, as quoted by Renke WN. Criminal justice and public health. In: Bailey TM, Caulfield T and Ries NM, editors. Public health law and policy in Canada. Markham: LexisNexis Canada Inc.; 2005. p. 464.
[xvii] Redding RE as quoted by Renke WN. Criminal justice and public health. In: Bailey TM, Caulfield T and Ries NM, editors. Public health law and policy in Canada. Markham: LexisNexis Canada Inc.; 2005. p. 464.
[xviii] Statistics Canada. The people: Major causes of death. [updated 2004, Sep 10]. In: The Canada e-Book [cited 2006, Feb 6] Available from: http://142.206.72.67/02/02b/02b_003_e.htm#t01
[xix] Center for Disease Control. HIST290 Death Rates for Selected Causes by 10-Year Age Groups, Race, and Sex: Death Registration States, 1900-32, and United States, 1933-98. [updated 2005, Aug 23]. Hyattsville, Maryland: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention. Available from: http://www.cdc.gov/nchs/datawh/statab/unpubd/mortabs/hist290.htm#Tables
[xx] Statistics Canada. The people: Major causes of death. [updated 2004, Sep 10]. In: The Canada e-Book [cited 2006, Feb 6] Available from: http://142.206.72.67/02/02b/02b_003_e.htm#t01
[xxi] Gray JE and O’Reilly RL. Clinically significant differences among Canadian mental health acts. Can J Psychiatry 2001;46:315-321.
[xxii] Hunsley, J. Review: Gray JE, Shone MA. and Liddle PF. Canadian mental health law and policy. Markham: Butterworths, 2000. Canadian Psychology Aug 2001. ¶ 10:30 a.m. 0 comments
-------------------------------------------
This paper briefly discusses the concept of health, the legal powers of the State to promote health, and considers one notable example in the area of mental health, where the State may be preventing health.
The World Health Organization’s 1948 definition of health is “…a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity.”[i] While this definition has not been amended since its creation almost six decades ago, there has been considerable debate and discussion of how health is promoted or prevented.
Both public and population health are based on collective actions, including, but not restricted to policies, programmes, and perspectives, which are needed to create the conditions for a “state of health”. The Institute of Medicine (USA) has proposed the statement that “Public Health is what we, as a society, do collectively to assure the conditions for people to be healthy.”[ii] Much of what “we do” as a society is carried out by the State, thus it is important that there be considerable alignment between the concepts of “state of health” and “State in health”.
The “State” in Canada has several fundamental characteristics. First, it is a democracy: a government controlled (ideally) by the greater part of the people.[iii] Second, it has a (theoretically) representative government, with delegated authority to elected representatives who act on behalf of the bulk of the population and speak in their name.[iv] The government is also responsible, with close relationships between the executive (Cabinet) and the legislative (Parliament) branches of the government. The Prime Minister and Cabinet are at all times responsible to the House of Commons.[v] The fourth characteristic is that Canadian government is a federation with the broad powers of government distributed between a central government and provincial governments. [vi]
Next, the government of Canada accepts the principle known as the “rule of law”, which connotes that all acts “of government must be based on a law and not on the whim or caprice of the officials who may happen to be in authority.”[vii] The rule of law is protected by the sixth characteristic: the independence of the judiciary. All citizens have the right of appeal to the courts for protection, with the assurance that there will be assurance of finding justice.[viii] Finally, Canada is a sovereign independent state associated with others of equal status in the Commonwealth of Nations. [ix]
Health has been consistently listed as a major concern of Canadians.[x] It is within this complex and interdependent context that individuals pursue health goals - their actions, histories, and genetics; their elected representatives; the executive, legislative, and administrative branches of several tiers of government; the judiciary, and; external bodies and governments in an international context – are all part of the creation of health.
Professor Lawrence O. Gostin defines public health law as: “The study of the legal powers and duties of the State to assure the conditions for people to be healthy and the limitations on the power of the state to constrain autonomy, privacy, liberty, proprietary, or other legally protected interests of individual for the protection or promotion of community health.”[xi] In Canada however, health is not a topic specifically enumerated in the Constitution Act, 1867, and both the federal and provincial levels of government exercise legal authority in regard to public health concerns.[xii] This shared responsibility has led to considerable functional and jurisdictional confusion. This lack of clarity and friction can cause disputes between levels of governments, which can impede the speed of action in difficult situations. Given the complexity of health as a concept, the role of any partner/stakeholder/participant in the health of Canadians appears to shift according to the roles played by other players. It is not clear whether this appearance of shifting is based in reality or the perception of the observer.
The Supreme Court of Canada with regards to RJR-MacDonald Inc. v Canada, [xiii] limited the concept of “freedom of expression” and stated that the Charter was essentially enacted to protect individuals, not corporations. “At times it may be necessary to protect the rights of corporations so as to protect the rights of the individual. The courts must ensure that the Charter not become simply an instrument of better situated individuals to roll back legislation which has as its object the improvement of the condition of less advantaged persons.”
Given the “shifting sands” found around the roles of the various players in the promotion of health, some clarity has been offered by Gostin, via a taxonomy of legal powers to protect and promote the public’s health[xiv]:
· tax and spend – e.g., tobacco taxes and health care spending
· alter the informational environment – e.g., restrictions on advertising
· alter the built environment – e.g., zoning, occupational safety, and housing codes
· alter the socioeconomic environment – decrease disparities
· direct regulation – e.g., quarantine, licenses, and inspections
· indirect regulation through the tort system – e.g., tobacco and firearm litigation
· deregulation – e.g., legalise distribution and possession of drug injection equipment
In the same document, Gostin has also listed the core values of the field of public health law as collective responsibility for health and well-being, a focus on population, the involvement of the community, an orientation towards prevention, and social justice. Elsewhere, he describes the characteristics of public health law as: a special responsibility of government, a focus on populations, a relationship between the State and the population, the provision of population-based services grounded on scientific methodologies, and, the power to regulate individuals and business for the protection of the community.[xv]
The examples offered by Gostin are all connected to health promotion. Yet ironically these are, examples where laws actually prevent health. This is never so apparent as within the realm of mental health. While those affected by a mental disorder are often accommodated by provisions which state that someone is unfit to stand trial. Or are spared by a verdict of “not criminally responsible due to a mental disorder”, the criminal justice system has in many ways contributed to a public mental health crisis. “Portions of our jails are now the “new asylums” but without many of the psychiatric resources available to mental health hospitals. A 1999 Alberta study found that a full 34% of male inmates in provincial jails suffer a serious form of mental disorder like schizophrenia or bipolar disorder and 22% have attempted suicide. Suicide is now the number one cause of death for Canadians in Correctional facilities.”[xvi] The situation in the United States is worse…each year about 700,000 adults with a serious mental illness come into contact with the criminal justice system …about 70% of those admitted to correctional facilities have active symptoms of serious mental illness.[xvii]
While cancer and diseases of the heart account for over half of deaths in Canada[xviii] most of these deaths happen in the latter part of life.[xix] According to Statistics Canada[xx], suicide and mental disorders tend to happen earlier in life and are thus associated with a greater loss of potential. There were 3,692 deaths reported as suicides in 2001, up 2.4% from 2000. Suicide rates differ between men and women, young and old. Men are more likely to commit suicide than women, with 3.5 suicides among men for every suicide among women in 2001. For men, the risk of suicide was greatest between the ages of 40 and 44. For women, the risk peaked at ages 45 to 49. Young people who report high levels of depression, anxiety or low self-esteem are more likely to report suicidal thoughts. In 2001, there were 234 teenage deaths reported as suicide. Since the 1980s, the suicide rate—12.2 per 100,000 people in 1999—has remained fairly constant for teens aged 15 to 19. For both sexes, suicide was the second-leading cause of teen death, surpassed only by motor vehicle accidents.
When one examines Gostin’s taxonomy of legal powers within the context of the WHO definition of health, is it reasonable to wonder whether one can assert that a hierarchy of priorities exists between the physical, mental and social aspects of health. This is clearly something to be examined. The confusion of roles and the multiplicity of legal actors is clearly shown in a 2001 study that found “clinically significant differences among the provinces and territories on all major components of their mental health acts.”[xxi] The study concluded that some Canadian mental health acts include provisions that prevent patients receiving appropriate clinical care.
Alternate provisions that support appropriate clinical care, that respect the human rights and personal dignity of patients, and that are consistent with the Canadian Charter of Rights and Freedoms can be found in the legislation of other jurisdictions. These differences may be in part due to what Hunsley describes as an approach by most psychologists and other mental health professionals towards the realm of public policy and law as perhaps best characterized as one of benign neglect.[xxii] Mental health is an important aspect of the overall health of Canadians and it is time to move beyond neglect to a serious, action-oriented investigation of the role of law in the provision of mental health services. At what point does benign neglect become criminal negligence?
[i] Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19-22 June, 1946; signed on 22 July 1946 by the representatives of 61 States (Official Records of the World Health Organization, no. 2, p. 100) and entered into force on 7 April 1948 [cited 2006 Feb 5] . Available from: http://www.who.int/about/definition/en/
[ii] Institute of Medicine. The future of the public’s health in the 21st century. Washington, D.C.: National Academy Press, 2003.
[iii] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 3.
[iv] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 5.
[v] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 6.
[vi] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 9.
[vii] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 11-12.
[viii] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 13.
[ix] Dawson RM and Dawson WF (revised by Ward N). Democratic government in Canada 3rd ed. Toronto: University of Toronto Press; 1971. p. 14.
[x] Standing Committee on Health: Health Canada - Main Estimates. Opening remarks for A. Anne McLellan, Minister of Health. Ottawa, May 7, 2002 [cited 2006 Feb 5]; Available from: http://www.hc-sc.gc.ca/ahc-asc/minist/health-sante/speeches-discours/2002_05_07_e.html
[xi] Gostin LO. Health of the people: The highest law? The Journal of Law, Medicine & Ethics 2004; 32(3): 509-515.
[xii] Ries NM. Legal foundations of public health in Canada. In: Bailey TM, Caulfield T and Ries NM, editors. Public health law and policy in Canada. Markham: LexisNexis Canada Inc.; 2005. p. 8.
[xiii] RJR-MACDONALD INC. c. CANADA (P.G.), [1995] 3 R.C.S. 199
[xiv] Gostin LO. The core values of public health law and ethics. In: Bailey TM, Caulfield T and Ries NM, editors. Public health law and policy in Canada. Markham: LexisNexis Canada Inc.; 2005. p. xi.
[xv] Gostin LO. Health of the people: The highest law? The Journal of Law, Medicine & Ethics 2004; 32(3): 509-515.
[xvi] Canadian Mental Health Association, Alberta Division, as quoted by Renke WN. Criminal justice and public health. In: Bailey TM, Caulfield T and Ries NM, editors. Public health law and policy in Canada. Markham: LexisNexis Canada Inc.; 2005. p. 464.
[xvii] Redding RE as quoted by Renke WN. Criminal justice and public health. In: Bailey TM, Caulfield T and Ries NM, editors. Public health law and policy in Canada. Markham: LexisNexis Canada Inc.; 2005. p. 464.
[xviii] Statistics Canada. The people: Major causes of death. [updated 2004, Sep 10]. In: The Canada e-Book [cited 2006, Feb 6] Available from: http://142.206.72.67/02/02b/02b_003_e.htm#t01
[xix] Center for Disease Control. HIST290 Death Rates for Selected Causes by 10-Year Age Groups, Race, and Sex: Death Registration States, 1900-32, and United States, 1933-98. [updated 2005, Aug 23]. Hyattsville, Maryland: U.S. Department of Health and Human Services, Centers for Disease Control and Prevention. Available from: http://www.cdc.gov/nchs/datawh/statab/unpubd/mortabs/hist290.htm#Tables
[xx] Statistics Canada. The people: Major causes of death. [updated 2004, Sep 10]. In: The Canada e-Book [cited 2006, Feb 6] Available from: http://142.206.72.67/02/02b/02b_003_e.htm#t01
[xxi] Gray JE and O’Reilly RL. Clinically significant differences among Canadian mental health acts. Can J Psychiatry 2001;46:315-321.
[xxii] Hunsley, J. Review: Gray JE, Shone MA. and Liddle PF. Canadian mental health law and policy. Markham: Butterworths, 2000. Canadian Psychology Aug 2001. ¶ 10:30 a.m. 0 comments
What If Project
My friend, colleague, and mentor from the UK, Dr. Joyce Liddle (who will be taking a new position as Associate Professor of Public Policy, Nottingham Policy Centre, School of Sociology and Social Policy, University of Nottingham, this spring) sent me this very interesting blog link - Whatifproject.
Run by Stuart Smith BSc MSc (DIC), his biography says that he is the Director of Consultancy at Wood Holmes Group, and has several years experience of working in environmental, regeneration and strategy development. He is particularly interested in understanding complexity in regeneration and the knowledge sharing processes that are vital to regeneration success. Stuart has pioneered community centric approaches to regeneration and future visioning.
I really like the recent inputs on randomness. Try this:
- Keep a dictionary somewhere where you will normally see it.
- Open the dictionary at a random place and select a random word.
- Does this word generate any ideas? ¶ 10:18 a.m. 0 comments
Run by Stuart Smith BSc MSc (DIC), his biography says that he is the Director of Consultancy at Wood Holmes Group, and has several years experience of working in environmental, regeneration and strategy development. He is particularly interested in understanding complexity in regeneration and the knowledge sharing processes that are vital to regeneration success. Stuart has pioneered community centric approaches to regeneration and future visioning.
I really like the recent inputs on randomness. Try this:
- Keep a dictionary somewhere where you will normally see it.
- Open the dictionary at a random place and select a random word.
- Does this word generate any ideas? ¶ 10:18 a.m. 0 comments
