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Legal Determinants of Global Health: necessary but not sufficient?

Nayha Sethi, Marlee Tichenor and Mark Hellowell reflect on whether the law can improve global health

Are legal tools effective in bringing about improvements in global health and justice? Can the law be a catalyst for positive change? Conversely, can it be harmful or counter-productive?

Earlier this week, the University of Edinburgh hosted a panel discussion on the Lancet-O’Neill Commission Report ‘The Legal Determinants of Health: Harnessing the Power of Law for Global Health and Sustainable Development,’ in which these questions were addressed.

John Monahan (Professor of Law at Georgetown University and one of the Commission’s co-chairs) introduced the Report by outlining its central argument. The law, he said, has the potential to shape global health in material ways, many of which are currently underappreciated and underutilized. This message is reflected throughout the Report, across four legal ‘determinants’, and seven related recommendations in areas as diverse as universal health coverage, governance of health institutions and evidence-based health interventions.

Three panellists from the University of Edinburgh had plenty to comment on. Key to the debate was the question of how far law can actually take us in achieving global health with justice.

Image from event showing panel discussion

Dr Nayha Sethi (Chancellor’s Fellow at the Centre for Biomedicine, Self and Society) reflected on the emphasis placed on building legal capacity and disciplinary bridges in the Report. Crucial to these endeavours is not only understanding how law can be used as an effective tool, but equally, recognising the limits of law and the significance of discerning if and when legal tools are the most effective strategy, or necessary at all. She highlighted tensions between specific and prescriptive vs flexible and abstract norms and the need for context-sensitivity. Nayha stressed the importance of gathering and sharing best practice which, when effectively co-produced: 1) captures important lessons-learned on the ground by key actors charged with implementing laws and policies; 2) helps to address policy-practice gaps; and 3) supports decision-makers in interpreting norms. While agreeing with the authors that research and response during global health emergencies is often hindered by complex regulatory regimes, she questioned whether merely calling for regulatory reform disproportionately problematised law whilst ignoring wider, equally influential factors such as resource limitations, research funding structures and wider political dynamics.

Dr Marlee Tichenor (Research Fellow, METRO, Social Policy) similarly emphasised that without the infrastructure and resources to enforce laws that might exist on the books, international and domestic health law will have limited applicability in practice. Drawing on her anthropological research on malaria interventions and universal health coverage policies in Senegal, she also highlighted the ways that national sovereignty complicates an assumption that international ‘hard law’ can shape individual nations’ approaches to health policy and interventions. Further, health laws that work in one context will not necessarily have the same effects in another. She ended on the question: If the Report presents an aspirational perspective on what international and national law are able to implement in the name of health in an ideal world, what might practical or reachable versions of the Report’s recommendations look like?

Dr. Mark Hellowell (Director, Global Health Policy Unit) expanded on the issue of scarcity, and its influence on achieving universal health coverage (UHC) - a legal determinant discussed in the Report. He noted the scarcity of financial and technical resources in many countries. He suggested that achieving even a basic package of essential health services requires a level of financial and state capacity absent in many countries. Achieving UHC also necessitates health workforces properly trained and motivated to provide high quality care; populations being well-informed about their health needs; and an understanding of how these can be met by qualified health professionals (and only them!). These assumptions often do not hold in practice, due to limited state capacity to act as effective stewards of health systems and lack of political will. A key question is to what extent legal innovations can act as a catalyst for progressive change – to force government’s hand, thereby enhancing the priority afforded to health sector challenges, leading to greater policy attention and funding? If, for example, a law was passed that specified the range of essential health services to which citizens must have free or subsidised access, might that stimulate governments to ensure that the level of coverage they provide is consistent with health equity?

The discussion continued with questions and comments from the audience, who were keen to understand how we might better build disciplinary bridges between health professionals and legal academics. The need for a current database documenting positive legal interventions in global health was also highlighted. John concluded the discussion by reflecting upon some common themes emerging from the discussion. In particular, these include the ongoing need to engage with additional determinants of health. John outlined the next steps for the Commission including plans to establish a permanent group to advise governments and other policy stakeholders on using law to achieve progressive change in health and health systems.

The event concluded with Lawrence Gostin (another Report co-chair) discussing the current public health emergency of international concern of the 2019-nCoV. Lawrence offered an overview of the delicate balance which international institutions (such as the World Health Organisation) and international instruments (such as the International Health Regulations 2005) must strike in terms of accommodating often conflicting demands of public health, human rights, international trade and travel).

A video of the event will be made available shortly and a link to this will be posted here soon.