THE ROLE OF HUMAN RIGHTS IN PUBLIC HEALTH POLICY; AND AN APPLICATION OF THESE PRINCIPLES TO THE SMOKING BAN
The formation of public health policy involves a careful balancing exercise between the needs and rights of different groups of people. Due to the very nature of public health, creating legislation in this area involves the consideration of a number of often competing factors. These include, but are not limited to, health impacts, economic issues, enforceability, public support, the effect on human rights, and current international practice. The impact of each of these factors on public health decisions is often debated, and one of the most controversial areas is the question of the role of individual human rights. It is this tension that we must address.
Before it is possible to undertake any meaningful discussion about the legitimacy of public health policy, it will be necessary to first examine the exact role and meaning of public health. It is clear that “much controversy persists as to the appropriate scope of public health action.” As noted by Mark Rothstein, the proper scope of public health can be more easily determined if there is “greater clarity and consensus on the meaning of public health.”
Having discussed the definition of public health, we are naturally led to consider the controversial aspects of health policy – specifically, the role of human rights. Public health has the potential to infringe on personal choices. The exact place of human rights in health policy is unclear; attempts to control individual behaviour for ‘the common good’ are often seen as encroaching on citizens’ autonomy. However, it is clear that no right is absolute, and therefore there must be principles that highlight when it would be appropriate to trump one set of rights in order to protect another. John Stuart Mill’s famous dicta states, “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.” The examination of the relationship between public health and human rights will be followed by searching for appropriate principles guiding such decisions. This will allow us to determine whether current practice is satisfactory, and make suggestions for improvement.
These principles will then be viewed in light of the smoking ban, due to come into force in England in the summer of 2007. The ban on smoking in public places raises questions about freedom of choice. On the other hand, the governments’ duty to protect non-smokers right to health is seen as outweighing the liberty of smokers. Therefore, with the relevant theoretical grounding in mind it is necessary to ask whether the banning of tobacco is a denial of a smokers’ Article 8 right to a private life, or a necessary upholding of the governments duty to protect health in Article 2.
WHAT IS ‘PUBLIC HEALTH’?
Providing a definition of public health proves elusive; the American Institute of Medicine, in 1988, defined it as “what we, as a society, do collectively to assure the conditions for people to be healthy.” An in-depth discussion of the definition of health is beyond the scope of this work, therefore the definition provided by the World Health Organisation (WHO) will be used. This states "Health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity."
Engelhardt argues that the exact goals of public health are “socially determined and likely to be subject to some variation among societies and individuals.” More important than the specific goals is the overriding theoretical policy used to achieve these. The scope of the governments’ role in ensuring health is unclear, and there are disputes as to whether public health should take an expansive approach or be more limited. This conflict can be examined in light of the role of public health.