There are two basic views concerning the relationship between constitutional rights and proportionality analysis. The first maintains that there exists a necessary connection between constitutional rights and proportionality, the second argues that the question of whether constitutional rights and proportionality are connected depends on what the framers of the constitution have actually decided, that is, on positive law. The first thesis may be termed ‘necessity thesis’, the second ‘contingency thesis’. According to the necessity thesis, the legitimacy of proportionality analysis is (...) a question of the nature of constitutional rights, according to the contingency thesis, it is a question of interpretation. The article defends the necessity thesis. | A previous version of this article was published in Chinese Yearbook of Constitutional Law, Vol. 2010, 221–235. (shrink)

The Director-General of the WHO has suggested that China’s approach to the COVID-19 crisis could be the standard of care for global epidemics. However, as remarkable as the Chinese strategy might be, it cannot be replicated in other countries and certainly not in Europe. In Europe, there is a distribution of power between the European Union and its member states. In contrast, China’s political power is concentrated in the central government. This enables it to take immediate measures that affect the (...) entire country, such as massive quarantines or closing borders. Moreover, the Chinese legal framework includes restrictions on privacy and other human rights that are unknown in Europe. In addition, China has the technological power to easily impose such restrictions. In most European countries, that would be science fiction. These conditions have enabled China to combat epidemics like no other country can. However, the WHO might have been overoptimistic. The Chinese standard of care for treating COVID-19 also raises problematic issues for human rights, and the real consequences of these actions remain to be seen. (shrink)

A number of ethical frameworks have been proposed to support decision-making in public health and the evaluation of public health policy and practice. This is encouraging, since ethical considerations are of paramount importance in health policy. However, these frameworks have various deficiencies, in part because they incorporate substantial ethical positions. In this article, we discuss and criticise a framework developed by James Childress and Ruth Bernheim, which we consider to be the state of the art in the field. Their framework (...) distinguishes aims, such as the promotion of public health, from constraints on the pursuit of those aims, such as the requirement to avoid limitations to liberty, or the requirement to be impartial. We show how this structure creates both theoretical and practical problems. We then go on to present and defend a more practical framework, one that is neutral in avoiding precommitment to particular values and how they ought to be weighted. We believe ethics is at the very heart of such weightings and our framework is developed to reflect this belief. It is therefore both pluralist and value-based. We compare our new framework to Childress and Bernheim’s and outline its advantages. It is justified by its impetus to consider a wide range of alternatives and its tendency to direct decisions towards the best alternatives, as well as by the information provided by the ranking of alternatives and transparent explication of the judgements that motivate this ranking. The new framework presented should be useful to decision-makers in public health, as well as being a means to stimulate further reflection on the role of ethics in public health. (shrink)

Kaci Hickox was a nurse who worked with persons who were infected with Ebola in West Africa. When she returned to the United States, the governors of New Jersey and Maine intervened to confine her to inpatient quarantine despite the fact that she was asymptomatic and had no serological evidence of infection. She defied the quarantine which resulted in enormous public attention and discussion of quarantine and public fear. This article summarizes the case discussing the history of the case, the (...) government actions, and the final legal rulings. (shrink)

Public health ethics, like the field of public health it addresses, traditionally has focused more on practice and particular cases than on theory, with the result that some concepts, methods, and boundaries remain largely undefined. This paper attempts to provide a rough conceptual map of the terrain of public health ethics. We begin by briefly defining public health and identifying general features of the field that are particularly relevant for a discussion of public health ethics.Public health is primarily concerned with (...) the health of the entire population, rather than the health of individuals. Its features include an emphasis on the promotion of health and the prevention of disease and disability; the collection and use of epidemiological data, population surveillance, and other forms of empirical quantitative assessment; a recognition of the multidimensional nature of the determinants of health; and a focus on the complex interactions of many factors—biological, behavioral, social, and environmental—in developing effective interventions. (shrink)

The precautionary principle holds that we should not allow scientific uncertainty to prevent us from taking precautionary measures in response to potential threats that are irreversible and potentially disastrous. Critics of the principle claim that it deters progress and development, is excessively risk-aversive and is unscientific. This paper argues that the principle can be scientific provided that the threats addressed by the principle are plausible threats, and the precautionary measures adopted are reasonable. The paper also argues that one may use (...) epistemic criteria, such as consistency, coherence and explanatory power, to determine whether a threat is plausible, and that one may use practical considerations, such as effectiveness, proportionality, cost-effectiveness, realism and consistency, to determine whether a response to a threat is reasonable. (shrink)

A One Health approach holds great promise for attenuating the risk and burdens of emerging infectious diseases (EIDs) in both human and animal populations. Because the course and costs of EID outbreaks are difficult to predict, One Health policies must deal with scientific uncertainty, whilst addressing the political, economic and ethical dimensions of communication and intervention strategies. Drawing on the outcomes of parallel Delphi surveys conducted with policymakers in Singapore and Australia, we explore the normative dimensions of two different precautionary (...) approaches to EID decision-making—which we call regimes of risk management and organizing uncertainty, respectively. The imperative to act cautiously can be seen as either an epistemic rule or as a decision rule, which has implications for how EID uncertainty is managed. The normative features of each regime, and their implications for One Health approaches to infectious disease risks and outbreaks, are described. As One Health attempts to move upstream to prevent rather than react to emergence of EIDs in humans, we show how the approaches to uncertainty, taken by experts and decision-makers, and their choices about the content and quality of evidence, have implications for who pays the price of precaution, and, thereby, social and global justice. (shrink)

_BMC Medical Ethics_ is an open access journal publishing original peer-reviewed research articles in relation to the ethical aspects of biomedical research and clinical practice, including professional choices and conduct, medical technologies, healthcare systems and health policies. _BMC __Medical Ethics _is part of the _BMC_ series which publishes subject-specific journals focused on the needs of individual research communities across all areas of biology and medicine. We do not make editorial decisions on the basis of the interest of a study or (...) its likely impact. Studies must be scientifically valid; for research articles this includes a scientifically sound research question, the use of suitable methods and analysis, and following community-agreed standards relevant to the research field. Specific criteria for other article types can be found in the submission guidelines. _BMC series - open, inclusive and trusted_. (shrink)

Scholars in philosophy, law, economics and other fields have widely debated how science, environmental precaution, and economic interests should be balanced in urgent contemporary problems, such as climate change. One controversial focus of these discussions is the precautionary principle, according to which scientific uncertainty should not be a reason for delay in the face of serious threats to the environment or health. While the precautionary principle has been very influential, no generally accepted definition of it exists and critics charge that (...) it is incoherent or hopelessly vague. This book presents and defends an interpretation of the precautionary principle from the perspective of philosophy of science, looking particularly at how it connects to decisions, scientific procedures, and evidence. Through careful analysis of numerous case studies, it shows how this interpretation leads to important insights on scientific uncertainty, intergenerational justice, and the relationship between values and policy-relevant science. (shrink)

The influential public health ethics framework proposed by Childress et al. includes five “justificatory conditions,” two of which are “necessity” and “least infringement.” While the framework points to important moral values, we argue it is redundant for it to list both necessity and least infringement because they are logically equivalent. However, it is ambiguous whether Childress et al. would endorse this view, or hold the two conditions distinct. This ambiguity has resulted in confusion in public health ethics discussions citing the (...) Childress et al. framework, as demonstrated by debate between Resnik and Wilson and Dawson. We analyse this debate to resolve these ambiguities. Finally, we argue that the necessity/least infringement principle of the Childress et al. framework applies only in cases in which only one intervention is to be implemented to achieve one specific goal. In other cases, it is not essential to require that only the least infringing intervention be implemented. (shrink)

* Disclaimer: The views expressed are the author's own. This article should not be construed as representing policies of the American Medical Association.

Nurse Kaci Hickox is among the “Ebola Fighters” honored by Time magazine as its 2014 Person of the Year, having treated Ebola patients in Sierra Leone while volunteering with Médecins Sans Frontieres. When she returned to the United States in October 2014, she was quarantined in New Jersey for three days before returning home to Maine under the terms of a negotiated release. A year later, in October 2015, Hickox filed suit in federal court against Governor Chris Christie and New (...) Jersey health officials, claiming that the quarantine violated her civil rights. Her complaint asserts that New Jersey officials lacked the authority to quarantine her because she did not pose a significant risk of transmission. The lawsuit raises important questions about disease-transmission risk, the inability of science to rule out certain theoretical risks, and the state's power to quarantine. It also demonstrates that population health depends on respecting individual liberty and using the best available epidemiological data to set public health policy. (shrink)

Resnik’s argument relies upon an undefended and unjustified overvaluation of liberty. First, he overlooks some important arguments in favour of restrictions to liberty, and his consideration of the two he does review is unfair; second his account grossly overestimates the autonomy of our food choices; and lastly his mechanism for balancing liberty against other concerns involves an illicit double counting of the weight of individual liberty.