The International Migration and Recruitment of Nurses: Human Rights and Global Justice

The international migration of health workers – physicians, nurses, midwives, and pharmacists – leaves the world’s poorest countries with severe human resource shortages, seriously jeopardizing the achievement of the U.N. health Millennium Development Goals (MDGs). Advocates for global health call active recruitment in low-income countries a crime. Despite the pronounced international concern, there is little research and few solutions. This commentary focuses on the international recruitment of internationally educated nurses (IENs) from the perspective of human rights and global justice. It explains the complex reasons for nurse shortages in rich and poor countries; the duties of source and host countries; the human rights of health workers; and offers principles for responsible recruiting, focusing on national and global solutions

Mandatory HPV Vaccination and Political Debate

Vaccinations are among the most cost-effective and widely used public health interventions, but have provoked popular resistance, with compulsion framed as an unwarranted state interference. When the FDA approved a human papillomavirus (HPV) vaccine in 2006, conservative religious groups strongly opposed a mandate, arguing it would condone pre-marital sex, undermine parental rights, and violate bodily integrity. Yet, Governor Rick Perry signed an executive order in 2007 making Texas the first state to enact a mandate — later revoked by the legislature. Mandatory HPV vaccination reached the heights of presidential politics in a recent Republican debate. Calling the vaccine a very dangerous drug that could lead to mental retardation, Michele Bachmann asserted, To have innocent little 12-year-old girls be forced to have a government injection through an executive order is just wrong. Rick Santorum added, There is no government purpose served for having little girls inoculated at the force and compulsion of the government. Governor Perry almost immediately disavowed his action, saying first that the vehicle of an executive order was wrong and then vaccination should be opt-in. This political theater could frighten parents from vaccinating their children, causing preventable suffering and death. The scientific evidence demonstrates that population-based HPV vaccination is highly safe and effective, justifying widespread adoption of the vaccine. The only question is whether a state mandate would increase vaccination rates or result in a backlash against HPV and wider childhood vaccinations. Given the political divisiveness, states should launch health education campaigns before resorting to compulsion

The Tobacco Wars - Global Litigation Strategies

The Framework Convention on Tobacco Control (FCTC) identifies civil and criminal litigation as a public health strategy and promotes international cooperation (reporting, technical assistance, and information exchange). Holding the tobacco industry accountable through civil and criminal liability serves a number of public health objectives: punishes companies for hiding known health risks, manipulating nicotine content, and misleading the public; deters and preve nts future harmful behavior; compensates individuals and stake-holders for health care and other costs associated with smoking and exposure to environmental tobacco smoke (ETS); raises prices, resulting in lower tobacco consumption; increases disclosure of health risks, through labeling and advertising restrictions; and promotes transparency, by compelling discovery of internal industry documents. Tobacco litigation frequently has been used as a method for promoting tobacco control in the United States. Litigation is less common outside the United States, but increasingly advocates have brought innovative lawsuits abroad. This commentary explores global tobacco litigation strategies, with 4 key elements: compensation/recovery, advertising restrictions, criminal liability, and public interest writ litigation. The commentary argues that perhaps the most important effect of tobacco litigation has been to transform public and political perceptions about risk and responsibility in smoking, making clear what manufacturers knew, how they concealed this knowledge, and how they manipulated consumers. Tort law has reframed the debate from personal to corporate responsibility. However, the industry still manages, at least in the political realm, to alter the discourse to one involving freedom of choice for the smoker, the evils of big government, unfair taxation, and the influence of trial lawyers. Furthermore, now that the tobacco industry is aggressively seeking new markets in the poorest, least-regulated countries, litigation will take on new importance. The most promising strategies will use a human rights framework, arguing that tobacco is so detrimental that it violates the rights to health, life, and a sanitary environment

The FDA, Preemption, and Public Safety: Antiregulatory Effects and Maddening Inconsistency

Most people think of preemption as a technical constitutional doctrine, but it is pivotally important to health and safety, while also opening the door to broad judicial discretion. The Rehnquist and Roberts Courts’ pro-business/pro-preemption jurisprudence is distinctly antiregulatory, invalidating major state public health rules, such as in occupational safety, tobacco control, and motor vehicle safety. Apart from the antiregulatory effects, there is maddening inconsistency. Consider three relatively recent Supreme Court cases. In Riegel v. Medtronic, Inc. (2008), the Court held that federal law bars injured consumers from challenging the safety or effectiveness of FDA-approved medical devices. A year later, in Wyeth v. Levine, the Court came to the opposite conclusion, ruling that injured consumers could sue pharmaceutical companies for failing to warn about the risks of taking brand-name drugs. On June 23, 2011 in PLIVA, Inc v. Mensing, the Court found that injured consumers could not bring failure-to-warn claims for injuries caused by FDA-approved generic pharmaceuticals. Thus, in less than four years, the Court barred state health and safety litigation for FDA-approved medical devices, allowed failure-to-warn claims for branded pharmaceuticals, and then barred those claims for generic pharmaceuticals. What is the rational basis for treating branded and generic medicines differently even though, by law, the products must be equivalent? Or treating branded drugs and medical devices differently even though they go through similar approval processes? As Justice Sotomayor (dissenting in PLIVA) put it, this “leads to so many absurd consequences that I cannot fathom that Congress would have intended to preempt state law,” while even Justice Thomas writing for the Court admitted this outcome “makes little sense.” This article examines the Supreme Court’s perversion of the preemption doctrine, the newest ruling on generic medicines, and the public health value of litigation

Law as a Tool to Facilitate Healthier Lifestyles and Prevent Obesity

Public health agencies face considerable challenges trying to prevent overweight and obesity in society, primarily because a person\u27s own behavior is often the root cause of the disease. Individuals make personal choices about their diet, exercise, and lifestyle, so disease is often thought of as a matter of personal, not governmental, responsibility. This Commentary shows how law can be used as a tool to prevent overweight and obesity (see Table). The tools discussed in this article include: - Disclosure - e.g., labels and consumer information - Tort liability - e.g., inadequate disclosure of risks, misleading advertisements, and targeting children - Surveillance - e.g., reporting of glycosylated hemoglobin for diabetes management - Targeting children and adolescents - e.g., restricting food advertising during children\u27s programs; counter advertising to promote good nutrition and physical activity; limiting the use of cartoon characters; and restricting web-based games and promotions - Taxation of unhealthy food - e.g., junk food, snack, or Twinkie tax provides disincentive for purchasing calorie-dense, nutrient-poor foods; tax revenue could also be used to promote healthy nutrition - School policies - e.g., require schools to adhere to dietary guidelines and portion size; increase opportunities for nutrition education and physical activities - Built Environment - e.g., limit fast food restaurants, build recreational parks and bike paths, expand mass transportation, and provide lighting and playgrounds in housing developments - Food Prohibitions - e.g., ban trans fat from restaurants Despite the undoubted political risks, should public health agencies push for strong measures to control obesity, perhaps even banning hazardous foods? The justification lies with the epidemic rates of overweight and obesity, the preventable morbidity and mortality, and the stark health disparities based on race and socioeconomic status. Although the public dislikes paternalism, it is at least worth considering whether such an approach is ever justified to regulate harms that are apparently self-imposed, but which are deeply socially embedded and pervasively harmful to the public

The Constitutional Right to Free Communication of the Institutionalized Resident

This article comes from the notes and comments section of the North Carolina Central Law Journal from 1973. Justified by the generic first amendment protection to unabridged expression and association, a United States citizen cannot be unreasonably denied the right to communicate by mail; by telephone; with legal counsel; with the opposite sex; with others. In most states where such a citizen becomes mentally ill, the person may be involuntarily civilly committed. Although there is no justification for such a commitment beyond the fact that the individual is sick and is in need of care, often the individual\u27s first amendment freedoms are restricted while a resident of a mental institution. This article will focus on the extent to which such restrictions violate the constitutional right of free expression and association, e.g. by mail, by telephone, with legal counsel, with the opposite sex, by general visitation

Securing Health or Just Health Care? The Effect of the Health Care System on the Health of America

The author first analyzes why the prevention of illness and promotion of health provide the leading justification for the government to act for the welfare of the population. His analysis focuses principally on the foundational importance of health for human happiness, the exercise of rights and privileges, and the formation of family and social relationships. He explains why health care, although critically important; is not the only, nor even the most important, determinant of health. Most morbidity and mortality in the United States is attributable to environmental conditions, pathogens, and human behavior, which are all more responsive to population-based interventions than to medical treatment. Secondly, the author explores the importance of universal access to health care in achieving the health of populations. The number of persons in the United States without health insurance or with inadequate insurance is extraordinarily high and increasing, and this fundamentally inadequate access to health care services results in unnecessary sickness and death among large sectors of the population. Universal access to health care is justified not only by greater vitality among the currently uninsured, but also by social and economic benefits for all of society. Third, he examines the importance of equitable access to health care. The distribution of health care services is highly inequitable, with persons in lower socio-economic classes and ethnic minorities receiving substantially inferior care. The author states that the inequity in the distribution of health care services not only lowers the quality of life among those receiving inferior services, but also renders them poorer and more dependent on society. Inequitable access to health care extends the already wide gap between rich and poor in the United States, with worrying social implications. Fourth, the author explores the applicability of market theory and competition to health care services, stating that market theorists have the burden of demonstrating why a theory developed for consumer goods and services generally is applicable to health services that are essential to human flourishing. This burden is particularly strong when the empirical evidence shows that increased cost and inaccessibility have occurred in spite, and perhaps because, of competition in health care

The \u3cem\u3eLancet\u3c/em\u3e Commission on Global Health Law: The Transformative Power of Law to Advance the Right to Health

A new report by The Lancet-O’Neill-Georgetown University Commission on Global Health and the Law shows how law can fulfill the global pledge of the human right to health, while “leaving no one behind.” I call this “global health with justice.” We need both health and justice. By global health, I mean ever increasing indicators of good health and increased longevity in all countries around the world. By justice I mean that the global “good” of health must be fairly distributed both within and among countries. The Lancet Commission report offers a comprehensive roadmap towards realizing the law’s power to make us healthier and safer, describing how principles – like fairness, participation, and wielding evidence – can shape policies throughout government. It also vividly illustrates how good governance and the rule of law can advance both health and justice. We tend to think of science and medicine as the major drivers of good health. And, of course, these disciplines are vital to develop, implement, and improve healthcare, including pharmaceuticals, vaccines, and medical supplies. Yet, professional medical and nursing services make only a relatively small contribution to population health. More important are population-based interventions that modify core risks to health, such as diet, smoking, alcohol, and physical activity. These interventions are not the product of medicine or healthcare systems. Rather they are driven by law. In other words, what is the wonder drug that could save millions of lives? It is the law, enacted on the floors of national legislatures

Biomedical Research Involving Prisoners: Ethical Values and Legal Regulation

Until the early 1970\u27s, approximately 90% of all pharmaceutical research was conducted on prisoners, who were also subjected to biochemical research, including studies involving dioxin and chemical warfare agents. By the mid-1970\u27s, biomedical research in prisons sharply declined as knowledge of the exploitation of prisoners began to emerge and the National Commission for the protection of Human Subjects of Biomedical Research was formed. Federal regulations to protect human subjects of research were established in 1974. Special protections for prisoners were added in 1978, severely limiting research involving prisoners. However, the US correctional system has undergone major changes since the adoption of the federal regulations, making it appropriate to reexamine the ethical framework for research involving prisoners. While the history of prisoner exploitation cautions against allowing research, modern science might be able to improve understanding of the intractable problems faced by prisoners. Finding a balance between encouraging beneficial research and safeguarding prisoners is challenging and politically controversial. This commentary presents a series of proposals, based on the recommendations of Institute of Medicine Committee on Ethical Considerations for Research Involving Prisoners. If adopted, the following proposals would provide such a system of safeguards while allowing responsible research. 1) Expand the Definition of Prisoner to include non-custodial prisoners, comprehensively covering all individuals whose autonomy and liberty are restricted by the justice system. 2) Ensure Universal, Consistent Ethical Protection of prisoners by regulating all research on prisoners uniformly, irrespective of the source of funding, supporting agency, or type of correctional facility. 3) Create a National Database of Prisoner Research to permit greater accountability, provide a scientific methodology for assessing the success of research projects, and facilitate the implementation of beneficial research findings to prisoner populations. 4) Shift from a Category-Based to a Risk-Benefit Approach to Research Review to ensure that research with prisoners should be conducted only if it offers a distinctly favorable benefit-to-risk ratio, not because prisoners are a convenient source of research participants or have no access to therapeutic treatment. 5) Update the Ethical Framework to Include Collaborative Responsibility meaning that, to the extent possible, stakeholders (e.g., prisoners, correctional officers, medical staff) should participate in the design, planning, and implementation of research. 6) Enhance Systematic Oversight of Research by strengthening safeguards, making them consistent, and applying them in relation to the levels of risk and restriction of liberty experienced by prisoner-subjects