This article provides a critical analysis of ‘the legal’ in the legal determinants of health, with reference to the Lancet–O’Neill report on that topic. The analysis shows how law is framed as a fluid and porous concept, with legal measures and instruments being conceived as sociopolitical phenomena. I argue that the way that laws are grounded practically as part of a broader concept of politics and evaluated normatively for their instrumental value has important implications for the study of law itself. (...) This, in turn, has implications for how we approach the transdisciplinary ambitions that form a key part of the report’s recommendations to enhance law’s capacity to promote better, more equitable population health at local, national, international and global levels. (shrink)

Public health ethicists face two difficult questions. First, what makes something a matter of public health? While protecting citizens from outbreaks of communicable diseases is clearly a matter of public health, is the same true of policies that aim to reduce obesity, gun violence or political corruption? Second, what should the scope of the government’s authority be in promoting public health? May government enact public health policies some citizens reasonably object to or policies that are paternalistic? Recently, some theorists have (...) attempted to address these questions by arguing that something is a matter of public health if and only if it involves a health-related public good, such as clean water or herd immunity. Relatedly, they have argued that appeals to the promotion of public health should only be used to justify the provision of health-related public goods. This public goods conception of public health (PGC) is meant to enjoy advantages over its rivals in three respects: it provides a better definition of public health than rival views, it respects moral disagreement, and it avoids licensing objectionably paternalistic public health policies. We argue, however, that the PGC does just as poorly, or worse, than its rivals in all three respects. (shrink)

In The legal determinants of health: Harnessing the power of law for global health and sustainable development, Gostin et al. provide a sustained account of how law can and should be used as an instrument of health promotion. We pick up on the themes of this report with a specific focus of the importance of abortion for women’s sexual and reproductive health and the impact that particular ways of framing abortion in law can have on the lives of women and (...) girls. In this short comment, we wish to emphasize that abortion regulations need to move beyond frameworks based on narrow understandings of harm towards more progressive agendas that take into account the social determinants of health in order to reduce barriers to care. This contribution is particularly relevant to the Commission’s criticism that those ‘[l]aws that stigmatise or discriminate against marginalized populations are especially harmful and exacerbate health disparities’. (shrink)

The World Health Organisation encourages that blood donation becomes voluntary and unremunerated, a system already operated in the UK. Drawing on public documents and videos, this paper argues that blood donation is regarded and presented as altruistic and supererogatory. In advertisements, donation is presented as something undertaken for the benefit of others, a matter attracting considerable gratitude from recipients and the collecting organisation. It is argued that regarding blood donation as an act of supererogation is wrongheaded, and an alternative account (...) of blood donation as moral obligation is presented. Two arguments are offered in support of this position. First, the principle of beneficence, understood in a broad consequentialist framework obliges donation where the benefit to the recipient is large and the cost to the donor relatively small. This argument can be applied, with differing levels of normativity, to various acts of donation. Second, the wrongness of free riding requires individuals to contribute to collective systems from which they benefit. Alone and in combination these arguments present moral reasons for donation, recognised in communication strategies elsewhere. Research is required to evaluate the potential effects on donation of a campaign which presents blood donation as moral obligation, but of wider importance is the recognition that other-regarding considerations in relation to our own as well as others’ health result in a range not only of choices but also of obligations. (shrink)

Culling is used in traditional public health policies to control animal populations. These policies aim primarily to protect human interests but often fail to provide scientific evidence of effectiveness. In this article, we defend the need to move from a strictly anthropocentric approach to disease control towards a One Health ethics, using culling practices as an example. We focus on the recent badger culls in the UK, claiming that, based on data provided by the English Government, these culls may be (...) unjustified, all thing considered. We highlight the relevance of ethical reasoning rooted in One Health for this discussion, and make several suggestions including a moratorium on culling until data are provided to support the effectiveness of culling; to conduct a randomized trial to compare proactive culling with alternative methods; to apply deliberative democratic methods to assess public opinion towards the culls, and to find in Brexit an opportunity for aiming for more effective control measures. (shrink)

Although employed throughout health-related rhetoric and research today, prevention it is an ambiguous and complicated category when applied to mental and behavioral health. It is analyzed here, along with four ethical issues arising when public health preventative methods and goals involve mental health: age of intervention; resource priorities between prevention and treatment; substantive issues in preventive pedagogies and trade-offs framed by differences of approach. Illustrations include some of the most widespread and ambitious recent preventive models: those aiming to avert subsequent (...) mood disorders of depression and anxiety; those that would curb self-harming behavior, and efforts to anticipate and avoid or delay psychosis. To suppose that public mental health can be entirely modeled on other public health programs is mistaken. Instead, it must proceed with awareness of the particular features typifying many mental disorders. These include features of the disorders themselves; the preliminary nature of scientific knowledge about them; the contested applicability of traditional disease models to them; the dearth of established research data available about preventive interventions currently in place or proposed; and the effects of stigma and discrimination on any such interventions. (shrink)

The further development of public health ethics will be assisted by a more direct engagement with political theory. In this way, the moral vocabulary of the liberal tradition should be supplemented—but not supplanted—by different conceptual and normative resources available from other traditions of political and social thought. This article discusses four lines of further development that the normative conceptual discourse of public health ethics might take. The relational turn. The implications for public health ethics of the new ‘ecological’ or ‘relational’ (...) interpretation that is emerging for concepts such as agency, self-identity, autonomy, liberty and justice. Governing the health commons. The framework of collective action problems is giving way to notions of democratic governance and management of common resources. The concept of membership. Membership is specified by the notions of equal respect and parity of voice and agency. The concept of mutuality. Mutuality is specified by the notions of interdependent concern and care. (shrink)

While Powers and Faden do not consider possible anti-paternalism objections to their view, there are two variants of this objection that a social justice perspective is susceptible to. It is worth exploring which responses to such objections may be less promising than others. It is argued that for most public health measures targeting the disadvantaged, theorists and practitioners taking a social justice perspective should bite the paternalist bullet. Insofar as the government has the ability to reduce mortality and morbidity within (...) the population in a way that is fair and in everyone’s interests, then the use of paternalistic means or resultant paternalistic effects should be thought to be the lesser evil. (shrink)

After describing the disorder of psychopathy, I examine the theories and the evidence concerning the psychopaths’ deficient moral capacities. I first examine whether or not psychopaths can pass tests of moral knowledge. Most of the evidence suggests that they can. If there is a lack of moral understanding, then it has to be due to an incapacity that affects not their declarative knowledge of moral norms, but their deeper understanding of them. I then examine two suggestions: it is their deficient (...) practical reason or their stunted emotions that are at fault. The evidence supports both explanations. I conclude with an overview of the debate concerning whether they are morally or legally responsible for their actions. (shrink)

Using tombstoning (jumping from a height into water) as an example, this article claims that public health policies and health promotion tend to assess the moral status of activities following a version of health maximizing rule utilitarianism, but this does not represent common moral experience, not least because it fails to take into account the enjoyment that various health effecting habits brings and the contribution that this makes to a good life, variously defined. It is proposed that the moral status (...) of health threatening activities should instead be defined by a version of act utilitarianism where both maximizing value and method of calculation are decided by individuals. In this account personal responsibility for health is reduced to the obligation to undertake calculations effectively, comprising of two duties; epistemic and reflective. If there is an individual epistemic duty, it is plausible to suggest that health promotion should present information in a way which facilitates it, but despite the prevalent language of autonomous choice, discussion of health promotion messages, for example, related to drinking and smoking demonstrates that this currently does not happen. Health promotion strategies should seek to encourage reflection about the harm our health effecting behaviour causes others. (shrink)

Courts play a key role in deciding on public health controversies, but the legitimacy of judicial intervention remains highly controversial. In this article I suggest that we need to carefully distinguish between different reasons for persistent disagreement in the domain of public health. Adjudicating between public health controversies rooted in factual disagreements allows us to investigate more closely the epistemic capacities of the judicial process. While the critics typically point out the lack of appropriate expertise of judges—in particular with respect (...) to health and public health—we should not move too fast in inferring from this a generalized competence problem. This article offers four reasons for vindicating the importance of judicial intervention in factual disagreements: the relative independence of judges from the political establishment, the judicial commitment to evidence, the specific nature of judicial reasoning and an additional voice for the people in the policy-making process. (shrink)

This article deals with the specific claim that prophylactic male infant circumcision should be employed to prevent HIV transmission in countries in which the prevalence of HIV is relatively low. In a recent editorial, Australian researchers sought to promote the procedure as a ‘surgical vaccine’ against HIV in their country. This raises the question whether it would be reasonable for the UK to adopt a policy of mass infant male circumcision in order to protect individuals from heterosexually acquired infection with (...) HIV. A review of the relevant data and associated commentary indicates that the actual benefits of real-world circumcision policies to prevent HIV transmission are disputed and that circumcision, at best, provides partial protection. In addition, it is uncertain whether infant circumcision confers the same benefits that the adult procedure is proposed to provide. Reasons for performing circumcisions on infants include that the procedure is easier, less complicated and cheaper. However, it is not risk free. Despite arguments to the contrary, this article contends that it is morally problematic to operate on thousands of male infants each year for little benefit to children qua children. It is also argued that the use of the term ‘surgical vaccine’ to describe the procedure is both inaccurate and misleading. (shrink)

In modern representative democracies, much healthcare is publicly funded or provided and so the question of what healthcare systems should do is a matter of public policy. Given that public resources are inevitably limited, what should be done and who should benefit from healthcare? It is a dilemma for policymakers and a subject of debate within several disciplines, but rarely across disciplines. In this paper, I draw on thinking from several disciplines and especially philosophy, economics, and systems theory. I conclude (...) that economist and philosopher John Broome’s writing provides the framework for an answer: a healthcare system in a democracy should do as much good as possible, although sometimes we should sacrifice some overall good for the sake of fairness. This leaves open some detailed questions about what in practice we consider to be good and fair, and about when some good should be traded off in order to be fair. The answers to these questions depend on our values, or as explained by systems theory, our weltanschauung. How policy decisions should be made when citizens’ values differ is a subject of extensive academic debate. However, it is a separate question. Representative democracies have mechanisms for resolving such debates. (shrink)

This article introduces a special issue on the legal determinants of health, following the publication of the Lancet–O’Neill Institute of Georgetown University Commission’s report on the subject. We contextualize legal determinants as a significant and vital aspect of the social determinants of health, explain the work of the Lancet–O’Neill Commission and outline where consequent research will usefully be directed. We also introduce the papers that follow in the special issue, which together set out in greater detail the work of the (...) Commission and critically engage with different aspects of the report and the application of its findings and recommendations. (shrink)

In bioethics and health policy, we often discuss the appropriate boundaries of public funding; how the interface of public and private purchasers and providers should be organized and regulated receives less attention. In this paper, I discuss ethical and regulatory issues raised at this interface by three medical practice models in which physicians provide insured services while requiring or requesting that patients pay for services or for the non-insured services of the physicians themselves or their associates. This choice for such (...) practice models is different from the decision to design an insurance plan to include or exclude user fees, co-payments and deductibles. I analyze the issues raised with regards to familiar health care values of equity and efficiency, while highlighting additional concerns about fair terms of access, provider integrity, and fair competition. I then analyze the common Canadian regulatory response to block fee models, considering their extension to wellness clinics, with regards to fiduciary standards governing the physician–patient relationship and the role of informed consent. I close by highlighting briefly issues that are of common concern across different fundamental normative frameworks for health policy. (shrink)

This paper scrutinizes the tension between individuals’ rights and paternalism. I will argue that no normative account that includes rights of individuals can justify hard paternalism since the infringement of a right can only be justified with the right or interest of another person, which is never the case in hard paternalism. Justifications of hard paternalistic actions generally include a deviation from the very idea of having rights. The paper first introduces Tom Beauchamp as the most famous contemporary hard paternalist (...) by outlining his moral theory (principlism) and showing why it, as it stands, has to allow for hard paternalism. Secondly, the paper focuses on the notion of rights within principlism. I will employ traditional theories of rights to make sense of rights in principlism. Unfortunately, this attempt fails. In the third part, then, I claim that rights can only be limited with reference to the rights or interests of others. This structure is the very point of rights, it is their bite. I will argue for this claim and show its implications. The most important implication is that not only principlism, but every normative theory that includes rights of individuals, has to abolish hard paternalism. (shrink)

Despite the evidence showing the promise of HIV treatment as prevention (TasP) in reducing HIV incidence, a variety of ethical questions surrounding the implementation and “scaling up” of TasP have been articulated by a variety of stakeholders including scientists, community activists and government officials. Given the high profile and potential promise of TasP in combatting the global HIV epidemic, an explicit and transparent research priority-setting process is critical to inform ongoing ethical discussions pertaining to TasP.

Critical literatures, and public discourses, on public health policies and practices often present fixated concerns with paternalism. In this paper, rather than focus on the question of whether and why intended instances of paternalistic policy might be justified, we look to the wider, real-world socio-political contexts against which normative evaluations of public health must take place. We explain how evaluative critiques of public health policy and practice must be sensitive to the nuance and complexity of policy contexts. This includes sensitivity (...) to the ‘imperfect’ reach and application of policy, leading to collateral effects including collateral paternalism. We argue that theoretical critiques must temper their demandingness to real-world applicability, allowing for the detail of social and policy contexts, including harm reduction: apparent knock-down objections of paternalism cannot hold if they are limited to an abstract or artificially-isolated evaluation of the reach of a public health intervention. (shrink)

We argue that an unqualified use of the term solidarity in public health is not only equivocal but problematic toward the ends of public health. The term may be deployed normatively by public health advocates to strengthen the bonds among public health practitioners and refer to an ideal society in which the importance of interdependence among members ought to be acknowledged throughout the polity. We propose an important distinction between partisan solidarity and societal solidarity. Because any moralized belief in a (...) vision of a broad societal solidarity will be a contested political ideal, political reality would limit solidarity based on such a vision to partisan solidarity. An idealized vision of societal solidarity is simply not politically feasible in pluralistic, liberal, democratic societies. However, although societal solidarity is unlikely with respect to any particular policy, it might be hoped for with respect to constitutional procedures that provide boundaries for the agon of the political process. We suggest that moralizing assertions of a solidaristic ideal in a pluralistic society might be counterproductive to generating the political support necessary for public health per se and establishing legitimate public health policy. A pragmatic political approach would be for public health advocates to generate sufficient strong political support for those public health policies that are most amenable to the political and social realities of a time and place. (shrink)

Henry Shue’s model of basic rights and their correlative duties provides an excellent framework for analysing the requirements of global distributive justice, and for theorising about the minimum acceptable standards of human entitlement and wellbeing. Shue bases his model on the claim that certain ‘basic’ rights are of universal instrumental value, and are necessary for the enjoyment of any other rights, and of any ‘decent life’. Shue’s model provides a comprehensive argument about the importance of certain fundamental goods for all (...) human lives, though he does not consider health or health care in any significant detail. Adopting Shue’s model, I argue that access to health care is of sufficient importance to the enjoyment of any other rights that it qualifies as what Shue describes as a ‘basic’ right. I also argue that the basic right to health care is compatible with the basic rights model, and is required by it in order to for it to achieve its goal of enabling right holders to enjoy any decent life. In making this claim I also explore the requirements of the basic right to health care in terms of Shue’s triumvirate of duties and with reference to several key examples. (shrink)