Law and the public’s health

Public health law safeguards the health and safety of the population, promoting the human right to life and health, and the realization of social justice. There is sometimes a tension between public health regulation to promote community health and protecting individual liberty and autonomy. Governments must balance the common good with individual freedoms. In many countries, there are constitutional rights to health or to life that provide a positive duty on government to advance the right to health. Governments have multiple legal tools available to improve the public’s health and safety, ranging from the economic power to tax and spend, to the authority to alter the environments in which people live, through to direct and indirect regulation, including, where necessary, deregulation. Although the law can be a powerful agent for change, intervention can also raise critical social, ethical, or constitutional concerns. These issues are illustrated through four brief case studies on infectious diseases, non-communicable diseases, unintentional injuries, and violence to self or others.

A Distinct Right to Freedom of Thought in South America

The right to freedom of thought is guaranteed by Article 13 of the American Convention on Human Rights, yet current jurisprudence interprets the right as a mere dimension of freedom of expression, also protected by Article 13. Contemporary neurotechnology research presents the possibility for human thoughts to be tracked, recorded, analysed and predicted. This applies pressure upon the Inter-American Court of Human Rights’ current understanding of the right to freedom of thought. Firstly, this paper will examine how Article 13 has been interpreted by the Inter-American Court of Human Rights at different stages of its jurisprudence. Secondly, by considering both technological advances and the other rights guaranteed by the Convention, this paper argues for an evolution in the interpretation of Article 13 whereby the right to freedom of thought is understood as a distinct right, separate from freedom of expression. Finally, this paper proposes that the positive duty to secure Convention rights requires States to enact preventative legislation and regulations. Existing bioethics principles should be drawn upon to inform human rights-compliant laws and regulations that require the architectural design of technologies to limit the potential to infringe upon freedom of thought.

Testing the Motivational Strength of Positive and Negative Duty Arguments Regarding Global Poverty

Two main types of philosophical arguments have been given in support of the claim that the citizens of affluent societies have stringent moral duties to aid the global poor: “positive duty” arguments based on the notion of beneficence and “negative duty” arguments based on noninterference. Peter Singer’s positive duty argument (Singer Philosophy and Public Affairs 1:229–243, Singer 1972) and Thomas Pogge’s negative duty argument (Pogge 2002) are among the most prominent examples. Philosophers have made speculative claims about the relative effectiveness of these arguments in promoting attitudes and behaviors that could lead to the alleviation of poverty. In this article we present the results of two empirical studies that evaluate these claims, and suggest that both arguments have a modest effect on people’s attitudes and behaviors regarding global poverty. In a replication of the second study, the negative duty argument, in particular, had a statistically significant effect on donations. We discuss the theoretical and practical significance of these results and suggest directions for further research on the role that philosophical arguments can play in engendering concern and action on pressing moral problems.

Premature consent and patient duties

This paper addresses the problem of ‘premature consent’. The term ‘premature consent’ (introduced in a 2018 paper by J.K. Davis) denotes patient decisions that are: (i) formulated prior to discussion with the appropriate healthcare professional (HCP); (ii) based on information from unreliable sources (e.g. parts of the internet); and (iii) resolutely maintained despite the HCP having provided alternative reliable information. HCPs are not obliged to respect premature consent patients’ demands for unindicated treatments. But why? What is it that premature consent patients do or get wrong? Davis has argued that premature consent patients are incompetent and misinformed. We argue that this view is not sustainable. A more plausible position asserts that premature consent threatens the integrity of the medical profession. We argue that this gives rise to a negative patient duty (to not obstruct HCPs in upholding the integrity of the medical profession) which premature consent patients fail to honour. We argue for a further positive duty of good faith engagement in shared decision-making. This implies willingness to potentially revise or justify one’s evaluative bases (core assumptions, beliefs, values, etc.). Fundamentally, the problem with premature consent patients is that certain of their evaluative bases are not open to revision. They therefore fail in their duty to participate faithfully in the shared decision-making process.

Addressing Sexual Harassment Law’s Inadequacies in Altering Behaviour and Preventing Harm: A Structural Approach

Section 3(c) of the Sex Discrimination Act 1984 (Cth) provides that one object of the Act is ‘to eliminate, so far as is possible, discrimination involving sexual harassment in the workplace, in educational organisations and in other areas of public activity’. This article argues that the Act, in its current form, is not adequate for achieving that object for two reasons: first, its operative provisions reflect a normative principle that has, as its aim, the compensation of harm but not the prevention of future harm; and second, it fails to recognise some systemic harms caused by sexual harassment. The article proposes a structural approach to workplace sexual harassment regulation, which involves a positive duty for organisations to take reasonable steps to prevent sexual harassment and a regulatory framework aimed at putting in place the necessary motivations and incentives to ensure compliance with that duty. The article draws on insights from regulatory theory to explain how this regulatory approach can better serve the object of eliminating sexual harassment so far as is possible.

The positive duty of prevention in the common law and the Convention

Twenty years after the Human Rights Act 1998 came into force, where are we in our understanding of the relationship between tort and human rights? This paper argues that we are not as far along in our understanding as we could be. The reason for that has been the methodology we used to understand the relationship, focused as it was around remedies, limitation and causation. This paper proposes a new approach, based around the right rather than the remedy. It aims to theorise one particular cause of action – the duty in Osman v United Kingdom – to exemplify this approach. For English lawyers, who have historically used the framework of the forms of action to understand our own law, it is argued that this a good way to comprehend the European jurisprudence.

Ethical Dimensions of Arbitrator Resignations: General Duties, Specific Quandaries, and Sanctions for Suspect Withdrawals

This article deals with the ethical implications of arbitrator resignations. When an arbitrator resigns it can severely disrupt proceedings. Arbitrators have a positive duty to complete the mandate for which they have been appointed, and a corollary duty not to resign without justification. This article considers steps that can be taken at the outset of proceedings to minimise the likelihood of resignation. It then discusses ethical dilemmas associated with five common circumstances that can arise during the course of arbitral proceedings which might justify resignation. The article then recalls rare but disturbing instances when a resignation itself may be ethically dubious and sets out measures available to discourage such conduct. Ethical issues connected with resignation have traditionally been given less prominence than discussion of conflicts and challenges, but should not be overlooked in any new endeavors aimed at developing a code of conduct for international arbitration.