Mini symposiumGeneral justifications for public health regulation
Introduction
Convention holds that government intervention designed to promote population health and well-being is an unmitigated good. Why would society not want to organize itself in ways that maximize the health of populations? To fulfill many of the aspirations of human life requires a healthy mind and body.1 As health is so highly valued, sometimes public health officials assume that they do not need to justify their beneficent interventions. However, government should justify interventions because, almost invariably, they intrude on individual rights and interests and incur economic costs. It will be helpful to think about three general justifications for intervention: risk to others, protection of incompetent people, and risk to self. The first justification is the standard, well-accepted idea that government may intervene to prevent harm to others or punish individuals for inflicting harm. The second justification supports government action to protect the health and safety of those who are incapable of safeguarding their own interests. The third justification, and by far the most controversial, is paternalism; the protection of the health or safety of competent individuals irrespective of their own expressed wants and desires.
Section snippets
The ‘harm principle’: risk to others
‘One very simple principle [justifies state coercion]. That principle is that the sole end for which mankind are warranted, individually or collectively, in interference with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.… His own good, either physical or moral, is not a sufficient warrant. He cannot be rightfully
‘Best interests’: protection of incompetent people
The second justification for public health regulation (also well-accepted) is protection of the health and safety of incompetent people. Individuals, according to this theory, should not only be free from controlling interferences by others, but also from internal limitations that impede meaningful choice. People who have insufficient understanding to make informed choices, to deliberate and to act according to their desires or plans have diminished autonomy. Thus, two conditions are essential
Paternalism: risk to self
‘This way of thinking and speaking [the ‘right’ to take risks] ignores the fact that it is a rare driver, passenger, or biker, [or smoker] who does not have a child, or a spouse, or a parent. It glosses over the likelihood that if the rights-bearer comes to grief, the cost of his medical treatment, or rehabilitation, or long-term care will be spread among many others. The independent individualist, helmetless and free on the open road, becomes the most dependent of individuals in the spinal
Legitimacy and trust
Public health agencies rely on voluntary co-operation by those at risk and the support of the population at large. Consequently, they must appear credible in the advice they render, and trustworthy in their practices. Despite its importance, agencies face considerable challenges in maintaining public confidence, both because they are organs of government and because, by necessity, they are engaged in a highly political process.
Government gains its greatest legitimacy when regulating for the
Acknowledgements
This paper was presented at the President Session of the American Public Health Association Conference, Boston, November 2006. This article is based on a chapter in the author's forthcoming book: Public health law: power, duty, restraint. 2nd ed. Berkeley: University of California Press; forthcoming 2008.
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