Law Commons^™

Race And Discretion In American Medicine, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

The author’s focus in this article is on racial disparities in medical care provision--that is, on differences in the services that clinically similar patients receive when they present to the health care system. Racial disparities in health status, which is not greatly influenced (on a population-wide basis) by medical care, are beyond his scope here. Disparities in medical care access-potential patients' ability, financial and otherwise, to gain entry to the health care system in the first place, are also outside his focus. The author begins this article by putting the problem of racial disparities in medical care provision within the …

Rights And Efficiency In American Health Law, Maxwell Gregg Bloche

Georgetown Law Faculty Publications and Other Works

During the 1960s and 1970s, the individual rights revolution that swept through American society remade much of the nation's health law in its image. Sick people acquired the right to be told of the risks and benefits of proposed treatments and then to give thumbs-up or thumbs-down to their doctors' decisions. Successful suits for medical negligence went from rare to commonplace. Elderly and poor Americans achieved statutory rights of access to publicly funded healthcare, and courts burnished these rights with myriad procedural protections. The critically ill and their families won the right to refuse aggressive, life-sustaining treatments. Psychiatric patients acquired …

The Constitutional Right To Die: Ethical Considerations, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this commentary, the author first looks at some ethical reasoning supporting physician-assisted dying. Second, he examines some of the lines that have been drawn between withdrawing and withholding life-sustaining treatment on the one hand, and physician-assisted dying on the other. Finally, he relates both of these matters to constitutional reasoning, beginning with Cruzan and ending with the cases before the Supreme Court at the time of the article's publication.

Genetic Privacy, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Human genomic information is invested with enormous power in a scientifically motivated society. Genomic information has the capacity to produce a great deal of good for society. It can help identify and understand the etiology and pathophysiology of disease. In so doing, medicine and science can expand the ability to prevent and ameliorate human malady through genetic testing, treatment, and reproductive counseling.

Genomic information can just as powerfully serve less beneficent ends. Information can be used to discover deeply personal attributes of an individual's life. That information can be used to invade a person's private sphere, to alter a person's …

Health Information Privacy, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Thoughtful scholarship in the area of informational privacy sometimes assumes that a significant level of privacy can coexist with the development of a modern health information infrastructure. Some commentators suggest that we can have it both ways: that adequate legal protection of informational privacy will eliminate the need to significantly limit the collection of health data. This article demonstrates that there is no such easy resolution of the conflict between the need for information and the need for privacy. Because significant levels of privacy cannot realistically be achieved within the health information infrastructure currently envisaged by policymakers, we confront a …

Tuberculosis And The Power Of The State: Toward The Development Of Rational Standards For The Review Of Compulsory Public Health Powers, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This article uses tuberculosis as the paradigm for exploring rational standards for the exercise of compulsory public health powers. Extant doctrine in disability and constitutional law provides a lens for examining judicial review of state interventions. The author first sets out the central epidemiological and biological aspects of tuberculosis to demonstrate the strength of the governmental interest in curtailing the epidemic. Second, he examines the interventions of testing, screening, and confinement of persons with tuberculosis, where he focuses on two congregate settings--correctional and health care facilities--that present substantial health risks and are principal foci for the exercise of state intervention. …

The Resurgent Tuberculosis Epidemic In The Era Of Aids: Reflections On Public Health, Law, And Society, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The resurgence of tuberculosis and the rise in drug-resistant cases is neither inexplicable nor unexpected, but rather is the predictable outcome of a complex configuration of biological, social, and behavioral factors that have converged in America over the past decade. This article examines the biological, social, and behavioral causes of the epidemic, and suggests a comprehensive public health strategy for curtailing tuberculosis and other infectious diseases. When thoughtfully conceived, public health strategies can be implemented that are consistent with the limitations that both constitutional law and disability law place on the authority of the state. While traditional concepts of public …

Securing Health Or Just Health Care? The Effect Of The Health Care System On The Health Of America, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

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 …

The Americans With Disabilities Act And The Corpus Of Anti-Discrimination Law: A Force For Change In The Future Of Public Health Regulation, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this paper the author reviews the constitutional history of the courts' attempts to check the powers of the public health department. He demonstrates how ineffective and inconsistent constitutional review has been, and suggests that adequate review criteria have not emerged. The author shows that, whether the courts are applying First, Fourth, or Fourteenth Amendment standards, ultimately they are highly deferential to public health officials. Then he carefully examines the key concepts in the Americans with Disabilities Act (ADA) as they apply to communicable disease. He reveals Congress' clear intention to include communicable disease, even asymptomatic infection, as a disability. …

Foreword: Health Care Reform In The United States—The Presidential Task Force, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This essay serves as the foreword to Implementing U.S. Health Care Reform, a symposium held in 1993.

The exact specifications of the new health care system depend on the package that President Clinton will send to Capitol Hill and the changes that Congress will make in the reform package. Some of the basic structures and organizing principles of the new system that are being considered by the President are already the subject of intense public scrutiny.

The design being considered would involve new relations between the federal government and the states, between the public and private sectors, and between …

Drawing A Line Between Killing And Letting Die: The Law, And Law Reform, On Medically Assisted Dying, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Traditional medical ethics and law draw a sharp distinction between allowing a patient to die and helping her die. Withholding or withdrawing life sustaining treatment, such as by abating technological nutrition, hydration or respiration, will cause death as surely as a lethal injection. The former, however, is a constitutional right for a competent or once-competent patient, while the latter poses a risk of serious criminal or civil liability for the physician, even if the patient requests it.

An Alternative Public Health Vision For A National Drug Strategy: "Treatment Works", Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This article returns to a war waged virtually throughout this century--a war between the theories of punishment and rehabilitation in curtailing the drug epidemic. Today, the terms of the war are recast as supply-side policies based upon law enforcement; destroying crops in source countries; interdiction and increased sentencing; and demand reduction based upon prevention, education, and treatment. The war on drugs has reached a feverish pitch. New policies and statutes have tightened the grip of supply-side policies, with images of battle and hate mongering which go beyond the vilified drug lords and governments which harbor them, to the middle men, …

The Interconnected Epidemics Of Drug Dependency And Aids, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Drug dependence and human immunodeficiency virus (HIV) are America's two most pressing epidemics, interconnected by a cycle of urban poverty, physical dependence and a culture of sharing needles and syringes. Extant political strategies to curb these interconnected epidemics involve two traditional approaches. The first--law enforcement and interdiction--is designed to limit the supply of illicit drugs to the marketplace. This strategy is advanced by broad criminal sanctions against importing, selling, distributing, medically prescribing, or possessing illicit drugs or drug paraphernalia. The second strategy to combat the drug and HIV epidemics involves reducing the demand for illicit drugs. Education, counseling, and treatment …

Genetic Discrimination: The Use Of Genetically Based Diagnostic And Prognostic Tests By Employers And Insurers, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This paper analyzes the law, ethics and public policy concerning "genetic discrimination," defined as the denial of rights, privileges or opportunities on the basis of information obtained from genetically based diagnostic and prognostic tests. The Human Genome Initiative will enhance the ability to gather and organize information that may predict a person's future potential and disabilities. Enormous human benefits may ensue from understanding the etiology and pathophysiology of genetic disorders, including disease prevention through genetic counseling, and treatment of the disorders through genetic manipulation. This information will help clinicians understand and eventually treat many of the more than 4,000 diseases …

Ethical Principles For The Conduct Of Human Subject Research: Population-Based Research And Ethics, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This paper provides a halting first step in organizing a set of ethical guidelines for the conduct of population-based research, surveillance and practice. These principles are not distinct from, but an expansion of, traditional ethics. Research ethics, which matured significantly from the Nuremberg Code through to the Helsinki IV and the Council for International Organizations of Medical Sciences (CIOMS) guidelines, nourished the individual human spirit. Ethical principles should have a similarly profound impact in the development of science and the protection of human populations in the 1990s and beyond.

A Decade Of A Maturing Epidemic: An Assessment And Directions For Future Public Policy, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The author's goal in this article, is not merely to propose public health strategies for the future, but also to examine why government has been so slow, so equivocal, in its public health response to the acquired immune deficiency syndrome (AIDS) epidemic. He argues that there has been a fundamental ambivalence in perceptions of the epidemic. For some, AIDS is perceived as a disease, with sympathy for sufferers. Once AIDS is viewed as a disease, like other catastrophic diseases, it follows that public policy will be based upon science and epidemiology--health education, research and treatment.

For others, AIDS is caused …

Hospitals, Health Care Professionals, And Aids: The "Right To Know" The Health Status Of Professionals And Patients, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This article addresses why patients and health care professionals (HCPs) with human immunodeficiency virus (HIV) should have autonomy and privacy rights to choose whether to consent to an HIV test and to disclose their serologic status. It also demonstrates that the risk of HIV transmission in health care settings is exceedingly low, that it is probably lower than other well-accepted risks taken by patients and professionals, and that there are other less intrusive ways to further reduce the risk. The article concludes that knowledge of a patient's serologic status is unlikely to reduce risk, since no effective action could be …

The Future Of Public Health Law, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Developments in medicine and constitutional law dictate modification of public health legislation in the United States. Traditionally overlooked by legislators, present public health laws provide inadequate decision-making criteria and inappropriate procedures for dealing with issues. Revised legislation should provide health care officials and agencies with the tools to balance individual rights against public health necessities. This article makes four recommendations for legislative reform: (1) remove artificial legislative distinction between venereal and other communicable diseases; (2) provide criteria defining "public health necessity" to limit discretionary exercise of police power by health officials; (3) provide strong confidentiality protections in the collection and …

The Nucleus Of A Public Health Strategy To Combat Aids, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Since acquired immune deficiency syndrome (AIDS) was first identified in I98I, its rate of spread among a primarily young and vibrant population has chilled the medical and lay communities. Today, the public response is sober and oriented toward the examination of specific policies that could lessen the impact of the disease. After six years' experience it is now feasible to propose a strategy for combating AIDS. Consensus around the policies outlined in this article should form the nucleus of the public health strategy to combat AIDS before the intervention of an effective vaccine or treatment.

A Moment In Human Development: Legal Protection, Ethical Standards And Social Policy On The Selective Non-Treatment Of Handicapped Neonates, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

Selective non-treatment decisions involving severely handicapped neonates have recently come under renewed judicial and legislative scrutiny. In this article, the author examines the legal, ethical and social considerations attendant to the non-treatment decision. In Part II he discusses the predominant ethical viewpoints relating to this issue and proposes a new moral standard based on personal interests. Part III presents a survey of the jurisprudence relating to selective non-treatment decisions. Parts IV and V of this article provide a critical examination of the recently enacted Child Abuse Amendments of 1984, a federal legislative initiative designed to regulate treatment decisions relating to …

Contemporary Social Historical Perspectives On Mental Health Reform, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The argument presented in this article is that a new role has been developing in law which can and should be used as a strategy in the provision of services. It will be further argued that there is an important place for the law in setting limits on established psychiatric measures relating, for example, to compulsory admission and treatment, and even to particularly hazardous measures taken with the consent of the patient. The final role of law is to ensure the civil status of those who are the consumers of psychiatric services. One must accept the fact that pernicious legal …

Compulsory Treatment In Psychiatry: Some Reflections On Self-Determination, Patient Competency And Professional Expertise, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this article the author examines the rationale, in legal and policy terms, of the inextricable association traditionally formed between certification and incompetency. He argues that forming categories of people in which the law automatically dispenses with the requirement of seeking consent is fraught with conceptual inconsistencies and practical difficulties. He further argues that clinical judgments made without the consent of the patient should be made subject to an independent statutory review. Such a review procedure could also be adopted for treatments which are unusually hazardous, irreversible or not fully established even if the doctor purports to proceed with the …

Workers' Health And Safety: Whose Costs, Whose Benefits?, Joseph A. Page

Georgetown Law Faculty Publications and Other Works

Health and safety on the job remain sources of bitter controversy in the public forums. Businessmen rail against the Occupational Safety and Health Administration (OSHA) for its "dictatorial" enforcement of "oppressive" regulations, leading President Ford in early 1976 to demonstrate sympathy for their concerns. Labor leaders deplore the failure of industry and government to stem the toll of death and disablement from work-related disease. Members of' Congress, responsive to pressures from constituents, fill pages of the Congressional Record with reports of both employer vexations and employee tragedies.

Like ships passing in the night, advocates on both sides tend to regard …

A Mental Patient's Right To Vote: An Analysis Of The Wild Case, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

This article is an analysis of the Wild case that was heard on 15 June 1976 by Judge Lloyd Jones of the County Court, Warrington.

In order to vote, the person's name must appear on the register of electors as a resident of a particular locality. Any place where the elector legitimately resides (even a hostel, a general hospital or a university) may be used as an address which qualifies a person for entry onto the register. The one exception is found in section 4(3) of the Representation of the People Act 1949, as amended by the Mental Health Act, …

The Constitutional Right To Free Communication Of The Institutionalized Resident, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

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's first amendment …