Public health law and equal access to justice in rural America.

Author:Chezem, Linda L.
Position:Project Rural Practice Symposium
 
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This article argues that as lawyers across the nation seek to increase equal access to justice, they should include public health status and services as components of justice administration. The author examines both the current status of rural public health law as well as suggests specific instances in which rural lawyers could benefit from incorporating public health law into their legal practice. Lawyers have an ethical responsibility to their clients to understand public health science, and how those principles apply to their client's case in order to achieve the optimum outcome for the client. Public health law is an essential subject for rural lawyers. The article seeks to answer a critical question: How can rural lawyers use public health research and practices to improve their client outcomes, improve their own satisfaction with the practice of law, and benefit the community as a whole?

  1. INTRODUCTION

    Rural lawyers sometimes respond to questions about the impact of public health on their practice with the answer, "I am a lawyer, not a doctor." Other times, a quizzical look appears on the lawyer's face as he or she asks, "What do you mean?" On the other hand, the mention of alcohol misuse, childhood immunizations, hepatitis, HIV-AIDS, and domestic violence often sparks acknowledgement and interest. The forgoing list, however, is not exhaustive, and unless the lawyer is a recent law school graduate who wandered into a public health law class, the usual response is politely offhand. For the most part, lawyers are uninformed about the specific applications of public health law that might benefit them in their practice, especially a rural practice.

    This paper is the result of over fifteen years of observations and critical thinking about how to articulate the relevance of public health, and the devastating effects of public health failures, to the justice system. As lawyers across the nation seek to increase equal access to justice, we are now beginning to, and should continue to, include public health as a component of justice. The article will examine both the current status of rural public health law structures and processes, as well as identify specific instances in which rural lawyers could benefit from incorporating public health law into their legal practice. The central question this article seeks to answer is: How can small town lawyers use public health research and practices to improve their client outcomes, improve their own satisfaction with the practice of law, and benefit the community as a whole?

    The answer, while not simple, lies largely within the legal community itself. Practicing attorneys' knowledge and talents can advance the understanding of public health law and policies. The legal promotion of public health solutions begins largely with a careful consideration of how public health systems and justice systems can intersect to create equal access to justice. Lawyers, particularly rural lawyers who are so often community leaders, should take up the burden of an ultimate goal: to create laws and systems that are both comprehensive and understandable to improve health and justice in the communities they serve. Any lawyer can join in this effort regardless of the lawyer's practice area or the issue's subject matter content. Whether the lawyer is in general practice, civil litigation, criminal defense or prosecution, or focuses on family law, and regardless of whether the clients are individuals, institutions, or corporations; few practices totally can avoid public health related issues. The entire legal community should begin to understand and promote public health as an essential component of justice.

    Public health is complex in nature, and thus it is well suited to lawyerly expertise and practice. The complexities lie in the intersection of multiple levels of geopolitical governance, a broad range of scientific disciplines, and many diverse American cultures and societies. Often a general lack of understanding in the legal community, coupled with the inaccessibility of scientific evidence and expertise in the area, creates significant barriers to solving the public health issues that arise in the practice of law. The healthiest and most just solution is to provide resources that are up to date, easily available, and low cost. (1) Some of the resources that are more readily available in larger communities, such as preventive physical health screenings, mental health and alcohol dependence screenings, assessments, and treatments are either too expensive or too distant for rural clients to access. Rural law offices have been considered unable to assist in gaining access to such services or providing public health related services because the expense is such a major barrier.

    This article explains why lawyers should have a stake in public health. (2) It examines some current and emerging public health issues to demonstrate the legal impacts across many areas of practice. (3) Next, this comment will define public health. The article will identify the ten essential public health services every community should work to provide; examine the three core functions of public health in order to provide foundation for the ways public health issues might manifest in a small town practice; and explain the importance of relevant research. (4) Historical and current public health issues will be described. (5) Finally, this article will consider public health tools that may assist lawyers in rural practices as their clients very often have access to fewer programs than those in suburban and urban communities. (6) While the basic public health principles do not necessarily vary much from rural to urban, the number and quality of services vary greatly. The variances in demographics, and differences in access to services in rural communities, increase the difficulty for rural lawyers seeking access to practical approaches and effective tools to incorporate public health law into their practice. This article will offer those tools and approaches necessary for rural lawyers to better represent clients in public health law issues.

  2. BACKGROUND

    1. WHAT IS PUBLIC HEALTH?

      The Institute of Medicine ("IOM") defines public health as "what we, as a society, do collectively to assure the conditions in which people can be healthy." (7) The parameters for law under the public health banner set by this definition appear to be vast, and they are not well defined anywhere. Public health advocates, and some public health professionals, have taken the IOM definition as justification to claim whatever they want to claim to be under the purview of public health. The strongest example of this approach can be found in the recent writing and discussion recycling the 1988 idea of "Health in All Policies" ("HiAP"). (8) The HiAP concept recognizes that social, physical, and economic environments all influence health, and these factors are collectively referred to in HiAP as the "social determinants of health." (9)

      Using this holistic approach to public health, the Public Health Institute, the California Department of Public Health, the American Public Health Association, and The California Endowment produced the Health in All Policies: A Guide for State and Local Governments in 2013. These organizations created this strategy in response to a current growing interest in using collaborative approaches to improve public health by embedding health considerations into decision-making processes across a broad array of law and policy sectors. As more jurisdictions adopt this approach, it will force rural lawyers to either engage in public health law or have the scope of their practice severely limited. The IOM has also published a working paper that adds commentary and new perspective to the aims of HiAP. (10)

      The American Society of Law, Medicine, and Ethics ("ASLME") recently published an article in which the authors list a series of major developments in public health practice and the law. (11) Some of those policy areas include: tobacco control, emergency legal preparedness, health information privacy and data sharing, food policy, vaccination, drug overdose prevention, sports injury law, public health accreditation, and maternal breastfeeding. (12) The authors also include some of the main specifically legal themes:

      (1) [F]ood access and nutrition assistance; (2) school foods (e.g., farm to school, standards for school lunches and competitive foods); (3) regulation of food and beverage marketing (e.g., industry self[-]regulation, marketing to children and minorities, First Amendment restrictions on government action); (4) labeling of packaged foods and menus; (5) encouraging healthy foods (e.g., funds for supermarket development, use of food stamps at fanners' markets, healthy corner store programs); (6) discouraging unhealthy foods (e.g., sugar-sweetened-beverage taxes, nutritional standards for toy giveaways and government food-purchasing contracts, reducing sodium intake); (7) food safety; [and] (8) aligning agricultural policy with the federal Dietary Guidelines for Americans.... (13) This mere sampling of descriptions of public health law provides a wide scope for a lawyer who understands public health as having complex and foreseeable impacts on the justice system to incorporate public health concepts into his or her practice. Furthermore, a knowledgeable rural lawyer could also build a successful practice around public health issues because so many rural communities are agricultural in nature.

      Equally important, a rural lawyer can also help in a very hands-on way by molding policies that promote public health services in communities where resources may be quite limited in access to both public health and justice. Most lawyers, and maybe even particularly rural attorneys, are committed to the American ideals of fairness and justice for all members of society. Legal, social, and health issues are all intersecting...

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