Introduction

SUMMARY POINTS

· This report aims to raise awareness about the role that the reform of public health laws can
play in advancing the right to health and in creating the conditions for people to live healthy lives.
By encouraging a better understanding of how public health law can be used to improve the
health of the population, the report aims to encourage and assist governments to reform their
public health laws in order to advance the right to health.

· The report highlights important issues that may arise during the process of public health law
reform. It provides guidance about issues and requirements to be addressed during the process of
developing public health laws. It also includes case studies and examples of legislation from a
variety of countries to illustrate effective law reform practices and some features of effective
public health legislation.

Purpose and scope of this report

The right to health is a fundamental human right that is indispensable for human well-being, for
well-functioning societies and economies, and for the ability to exercise all other human rights.
Without a basic level of health, it may be difficult or impossible for people to work, to attend school
and obtain an education, to enjoy recreation, to fully participate in society, and to enjoy other basic
freedoms. Countries around the world face many challenges that threaten the health of their
populations. These include endemic and emerging communicable diseases (e.g. HIV, tuberculosis,
malaria, emerging strains of influenza), and noncommunicable diseases (e.g. cancer, cardiovascular
disease, respiratory diseases and diabetes). Added to this are intentional and unintentional injuries,
global environmental degradation, threats to food safety and security, and trade in harmful
products.

Although these challenges have an impact on health in all countries, they disproportionately affect
poorer countries, which not only lack the resources to manage them but may also lack the political
and economic power to negotiate effective international agreements to achieve better health and
justice for their populations. Within countries, poorer segments of the population are
disproportionately affected by health risks, and by mortality and disability from disease. 1

Law is increasingly being recognized and used as a tool for improving the health of populations at
global, national and subnational levels. At the national level, governments need functioning health
systems that are supported by strong legal frameworks. Public health legislation sets out the
responsibilities and functions of governments to coordinate responses to public health risks, to
create healthier environments, to promote healthier behaviours, to generate the information base

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that is needed for effective action and policies, to manage a competent health workforce, and many
other functions.

This report aims to raise awareness about the role that the reform of public health laws can play in
advancing the right to health and in creating the conditions for people to live healthy lives. By
encouraging a better understanding of how public health law can be used to improve the health of
the population, the report aims to encourage and assist governments to reform their public health
laws in order to advance the right to health.

Governments may choose to reform their public health laws for many reasons: for example, to
modernize old and out-of-date laws, to address neglected issues and to respond to problems that
have arisen as a result of the application or enforcement of other laws. The process of revising public
health laws will vary significantly according to the historical and constitutional context and the legal
tradition of each country. These legal traditions include common law, civil law, tribal laws and
customs, and Sharia law. Public health law reform may occur in very different ways at national and
subnational levels. For all these reasons, there is no single approach to the reform process, and this
report is not intended to be prescriptive.

In order to achieve its aims, this report highlights important issues that may arise during the process
of public health law reform. Secondly, it provides guidance about issues and requirements to be
addressed during the process of developing public health laws on particular topics, such as access to
essential medicines, tobacco control or the regulation of infectious diseases. Thirdly, it includes case
studies and examples of legislation from a variety of countries, both large and small, to illustrate
effective law reform practices and some features of effective public health legislation.

In this report, public health law refers to the formal set of laws – and to the legal processes for
implementing and enforcing them – that seek to ensure the conditions for people to live healthy
lives. At the international level, law includes global, regional and bilateral intergovernmental
agreements, as well as the rules and regulations made by international bodies (e.g. WHO, the World
Trade Organization). At the national level, law includes executive orders and decrees issued by the
executive body or under the authority of the head of State or government; legislation passed by
Parliaments at national, state and local levels; subsidiary legislation (issued by executive agencies in
order to implement or give effect to principal legislation); the judgments and rulings of courts and
tribunals, and customary and tribal laws. In addition to legally binding instruments, executive
agencies and other government bodies may also issue non-binding guidelines and technical
standards: these may have normative effects and may play an important subsidiary role in reducing
health risks and creating healthier environments.

Who should read this report?

This report is intended to inform a wide audience, including:

• senior officials working within ministries of health;

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 • officials of other ministries within government who can significantly influence public health
through their actions and policies, and through the laws they administer. The relevant
ministries or departments may include: finance, foreign affairs, justice, agriculture,
consumer affairs, education, housing, infrastructure, transport, energy, trade, environment,
communications and social security;

• members of the legislative, executive and judicial branches of government (including

parliamentarians, ministers, judicial officers, and their advisers); and

• other stakeholders, including members of health organizations, philanthropic organizations,

the media, industry, academia, employer and labour organizations, and civil society
organizations.

Individuals have a critical role to play in protecting their health and in minimizing risks to their
health. Parents also play an important role in protecting their children’s health and in creating a
healthy home environment. At the same time, the State bears primary responsibility for realizing the
right to health for the population as a whole. Collectively, through the legislature, courts and
executive and statutory agencies, the State has the capacity to pass public health laws, to implement
them and enforce them, and to balance health with other policy and social goals.

Typically, the health ministry serves as the steward of the health sector, with primary responsibility
for health services and for protecting and promoting public health. On the other hand, responsibility
for administering laws and for regulating matters that may directly affect the health of the
population will be allocated between the health ministry and a range of other ministries, including
law and justice, finance and revenue, agriculture, media and communications, housing and
infrastructure, and transport. Officials from these sectors will be important stakeholders in the
public health law reform process.

States will need to build appropriate executive and legislative structures to facilitate a cooperative
approach to health protection spanning different ministries, agencies, and (where applicable)
different tiers of government. For these reasons, the audience for this report will extend across a
number of government ministries, and may include officials and elected representatives at regional
and city levels of government.

In some countries, the impetus for reform of public health legislation may come from non-State
actors, rather than from government. Civil society organizations, professional associations and
community groups – including patient advocacy groups – make important contributions to public
health by advocating for effective policies and laws within their areas of expertise and influence.
Meaningful participation by affected communities in the design and implementation of public health
laws will help to ensure support for the law within the community, thereby improving its
effectiveness.

In summary, this report is intended to support the actions of both governments – as they lead the
process of public health law reform – and non-government stakeholders who are involved in
advocating for the reform of public health laws and supporting effective public health practices.

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The structure of this report
This report aims to encourage a better understanding of how public health law can help
governments to discharge their international obligations under the right to health. The structure of
the report reflects the consensus reached at the second of two international consultations of experts
in public health law, hosted by WHO and the International Development Law Organization, in
collaboration with the O’Neill Institute for National and Global Health Law at Georgetown University,
Washington (DC) and Sydney Law School, University of Sydney, Australia. The first consultation, held
in Rome (27–29 April, 2009), called for the development of this report. The second consultation,
held in Cairo (26–28 April, 2010), identified the key topics and issues that this report should include,
and strategies for its dissemination.

Part 2 of this report discusses the process of public health law reform. The law reform process refers
to the practical steps involved in advancing the political goal of law reform, and the kinds of issues
and obstacles that may be encountered along the way. The context in which law reform occurs, and
the specific scope of the law reform process, will vary significantly between countries. Nevertheless,
there are a number of common reasons for reviewing and updating public health laws, and many of
the most important risks to health are shared by most countries. Part 2 identifies some of the actors
who may initiate or lead the public health law reform process, discusses principles of good
governance during that process, and ways of building a consensus around the need for public health
law reform.

As noted earlier, health is frequently shaped by factors and policies that lie outside the operational
sphere of the health ministry. On the other hand, the right to health is an obligation of government
as a whole. For this reason, Chapter 6 considers the law’s role in achieving an intersectoral, whole-
of-government approach to public health law reform.

Part 3 turns from the process of reforming public health laws to the substance or content of those
laws. It identifies a number of core areas of public health practice where regulation is essential in
order to ensure that governments (at different levels) discharge their basic public health functions.
Traditionally, these core areas of public health practice have included: the provision of clean water
and sanitation, monitoring and surveillance of public health threats, the management of
communicable diseases, and emergency powers. Part 3 also considers the role of law in advancing
universal access to quality health services for all members of the population.

Building on these core public health functions, Part 3 goes on to consider a range of other public
health priorities where law has a critical role to play. These priorities include tobacco control, access
to essential medicines, the migration of health care workers, nutrition, maternal, reproductive and
child health, and the role of law in advancing universal access to quality health services for all
members of the population. The report includes many examples that illustrate the ways in which
different countries have used law to protect the health of their populations in ways that are
consistent with their human rights obligations. Countries vary widely in terms of their constitutional
structure, size, history and political culture. For these reasons, the examples given are not intended
to be prescriptive, but to provide useful comparisons for countries involved in the process of
legislative review.

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REFERENCE

1
Commission on the Social Determinants of Health. Closing the gap in a generation: health equity through
action on the social determinants of health. Final Report of the Commission on Social Determinants of Health.
Geneva: World Health Organization; 2008.

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