What is the role of law in the prevention of chronic disease?
Gretchen Miller (Host): Hello and welcome to Prevention Works, the podcast of The Australian Prevention Partnership Centre. I’m Gretchen Miller and today it’s all about the complexities of public health law and its relationship to health policy as we ask, what is the role of law in public health as it applies to the prevention of chronic disease? And we have two guests, Dr Jenny Kaldor, lawyer, public health researcher, and until recently, a senior policy analyst with the Tasmanian Department of Health. In the show today Jenny is bringing her own perspectives on the field of public health law, and the critical importance of a legal perspective to the prevention of chronic disease. Jenny took a brief advisory role in the Prevention Centre’s latest knowledge synthesis on public health law, regulation, and policy for prevention, which draws lessons from across nine years of projects. So also joining us is Maddie Heenan who coordinated the knowledge synthesis, and Maddie has worked in advocacy for the Foundation for Alcohol Research and Education and is currently working with us as a research officer while undertaking a PhD with The George Institute for Global Health, having completed her Master’s in social change and development. Jenny, let’s start with you, you’ve just left your role at the Tasmanian Department of Health and you’re about to consult in public health law with the World Health Organization as Legislation and Legal Policy Officer in the Public Health Law and Ethics team in Manila, and I mention this first because it’s your expertise and commitment to public health law that takes you there. What will you be doing?
Jenny Kaldor: So first, I just want to start by paying my respects to the traditional owners of the land that I’m coming from, which is the Muwinina people here in Hobart, in beautiful Nipaluna, pay my respects to Elders past, present, and emerging, and in my role which I will still be based in Hobart but I’ll be working remotely for the Manila office of WHO. I will be acting as a technical advisor on public health law, so an example would be reviewing public health legislation for countries in the region that require that. A lot of public health legislation throughout the world is a legacy of British colonial times, so even then a lot of Australian states and territories these legislative structures can be quite out of date and reflect public health problems maybe of the 19th century and not necessarily of the 21st, and also even in a developed country like Australia we don’t always have the technical expertise or knowledge or capacity to update this, it’s a huge project. South Australia has very up-to-date public health legislation but other Australian states and territories don’t, so I’ll be providing that technical expertise on structural issues like legislation, but also specific public health legal interventions, which I think is going to be a big subject that we get into later on in the podcast.
Gretchen Miller: Fantastic, it sounds really exciting, and I wondered if you could provide us with a brief overview of the philosophy of public health law?
Jenny Kaldor: So public health law, which was not a new concept, public health law arguably dates back to the origins of modern public health itself at the Industrial Revolution, during the 19th century, but public health law as we know it today probably originates around the turn of the 21st century and it really originates in America with some thinkers like Lawrence Gostin at Georgetown University, who developed some theories and definitions and was extremely influential in starting a real interest and movement joining public health and law together. And so there were these very influential definitions that often brought into view some of the important tensions between public versus private, liberties versus duties of the state, and had a lot of maybe more American understandings of these tensions, underpinned by issues like their Constitution. Gostin talks about the powers and duties of the state to make legislation to protect and promote public health, but then there’s sort of an assumption that the individual might have a problem with this or might wish to challenge this based from arguments about liberty and freedom. These are very relevant and valid considerations throughout the world, but I think each country or jurisdiction has to think about it in terms of how it affects their own context. And so as a result, in my work in this area, I’ve tended to prefer a more Australian definition which comes from Christopher Reynolds, and it is the definition that public health law always retains its distinct public focus, and Reynolds notes, ‘It’s not about individual healthcare issues or the legal consequences of clinical negligence.’ So what we might call medical law and which people might be more familiar with, rather Reynolds says, ‘It provides the powers and creates the structures that assist the task of preventing disease and allowing the opportunities for longer and healthier lives.’ And I can drill down into that a bit more about some of the keywords there, if that would be of interest because when Reynolds says ‘retains a distinct public focus’, I think that already opens up a range of different definitions. So when we’re talking about public we’re very much talking about public as opposed to private, or public because it affects a huge swathe of the public or of the population of public because it involves the choices and actions of government, either that those choices and actions have caused the problem, or that the solutions to the problem might lie within the choices and actions of government, or public in the sense that, this I think applies in all countries, public in the sense that the problem is being caused by something that only governments have the ability or the powers to address. So air quality, for example, I might individually face some burden or disability in my health due to air quality but my ability to control that is far outside my reach and requires collective action which is usually undertaken by government.
Gretchen Miller: And on that point, on air quality for example, and perhaps going even more internationally than air quality you could look at, I don’t know, let’s see, the climate crisis and matters arising, but anyway, you wrote in a recent Lancet Commission which had shared authorship that 21st-century global health risks can be addressed using law as a powerful tool for advancing global health, but also, and we’ll get to the complexities of that actually being an international issue shortly, but also in fact that public health law is poorly understood in the public health community, so could you tell me then what public health law in Australia is in relation to say public health policy, and how they intersect and support one another?
Jenny Kaldor: So a key aspect of both public health and then public health law is the idea of prevention, so if a government was seeking to prevent a particular public health problem what kind of tools does a government have at its disposal? So governments have the power to give or take away money, that’s a key tool at the government’s disposal, that they have power and control so they can wield influence in various different ways, but another key tool that really only governments possess is the power to make laws and regulations and to me, and Maddie might have a different take on this, for me laws and regulations are a subset of policy tools, so policy to me is an aim or objective that a government might seek to implement, so say the aim or objective is to reduce smoking rates in the population, you might then drill down to the level of okay, to achieve that aim or objective what are the policy tools at our disposal? Okay, that toolbox includes information, education, health promotion, campaigns, and then the more legal or regulatory toolkit which are legislation, regulations, orders, all the mandatory instruments that we think about as being legally enforceable, so as in the smoking example you might have a non-regulatory tool, like information provision, and then you might have a regulatory tool such as mandated plain packaging, of which Australia was a pioneer in which situation it’s mandatory, so the industry must do it, and it’s enforceable, they will get a fine if they don’t do it.
Gretchen Miller: Right, thank you very much. Maddie, let’s bring you in now. The knowledge synthesis that you’ve put together for the Prevention Centre also came up with a definition of public health law, what did you decide to put under the banner of that term?
Maddie Heenan: Yeah, so the definition actually stems a lot from what Jenny just said, and that’s because part of our approach to this knowledge synthesis was to hold research policy dialogues with our policy partners, and through that we wanted to talk about what our partners understood public health law to be, and what kind of work they were already doing in that area, and I guess for some the definition was quite similar but I think sometimes there’s a little bit of a disconnect between policy and law and regulation. I kind of see them as being part of the same category under public health law and that’s how it’s traditionally defined, I’ve found anyway, in the literature, but maybe in practice it’s not necessarily seen that way, so while they are all tools for governments to use, policy is often seen a little bit separate to law and regulation, but then sometimes they are used interchangeably. But I guess for the synthesis we sort of had two schools of thought, I guess, some more high-level big policy frameworks that set the regulatory agenda, an example of that is the National Preventative Health Strategy, and then we classified public health law as implementation tools to achieve policy goals, which really aligns with what Jenny just said, but that can have legislative and non-legislative instruments, so that can be legislation and regulation, codes and standards, voluntary guidelines, but then we also sort of talked about including things like interorganisational policy within government across departments, something like environment guidelines and then maybe even intra, like internal organisational policy, like health food provision directives for hospitals. We didn’t talk, I think, probably enough about educational tools because they obviously fit in that spectrum, but I don’t think we kind of have quite maybe found a good place to put that, but I think they all kind of complement each other.
Jenny Kaldor: Can I build on something that Maddie was saying then, which is that whenever I’m trying to define public health law there’s always this issue of scope that creeps in where you want to make a broad argument for the applicability and relevance and need and urgency of public health law but you don’t want to be accused of a land grab, either in terms of what is public health or what is law, and so it is a really tricky balance to define those terms. For example, if you talk about something being a public health issue due to the choices and actions of government, it could be an infinite regression back to say policy around educational attainment that then leads to low literacy levels that then leads to poor public health outcomes a generation down the track, is that a public health issue or is it an education issue, it’s broadly the social determinants of health as we describe them but would it come within the remit of someone working in public health, possibly no, possibly yes, that’s a challenge. And then conversely, something like an educational policy that Maddie just referenced a moment ago, and is very likely to have legislative underpinnings, so there might be a law that requires education on a particular topic to be provided, do we call that a law or do we call that an educational policy, we can call it both but if we were putting it in the hierarchy of policies I’d probably locate it at the education-informational end rather than how it’s actually implemented which is through a statute, most likely.
Gretchen Miller: I mean I guess when I think of law I think of something enforceable…
Jenny Kaldor: Yeah.
Gretchen Miller: …something I must do, if I don’t wear my seatbelt I get a fine, if I smoke inside a building I get a fine, I see that as law, whereas policy more is something that encompasses law, perhaps, as one of its tools. So okay, so those definitions are super interesting and obviously it seems like there are a number of interpretations of what public health law means and perhaps that’s a problem and perhaps that flexibility is a good thing, I mean these things are iterative, right. But Maddie, I wanted to ask you as a health advocate and researcher could you expand on the role of advocacy and its relationship to research and policy and law.
Maddie Heenan: Yeah, sure. I guess they are activities that really go hand in hand, so I mean this sort of is taking me a little step backwards into the definitions but I have also seen people define public health law as being like the traditional legal functions but also the related legal and regulatory activities that go with that, and that policy development, advocacy, monitoring, and enforcement, and evaluation, and so I think that there’s a role for all of that within this space that we’re calling public health law. And so for advocacy and research they’re also tools within the policy landscape, and really important tools because what we do in public health is we really try and promote evidence-based policy making and practice, so you really need the research evidence there to make your case and that research evidence really needs to be there so that you can properly advocate and ask for the things that you want to ask for. So I guess in my advocacy work we have really relied and valued on research in this space to make a case for why we might need certain regulations, perhaps there’s something missing within our framework. The classic example that I often refer back to is marketing regulation, particularly for junk food, alcohol, and gambling, so it’s quite an unregulated area, they all have slightly different frameworks that are largely self-regulated, some components are government regulated, but I think they’re quite old these frameworks and marketing has just really changed, it’s completely digital now, it’s all data driven and our regulation just hasn’t kept up with that, and so having people conduct research in this area kind of really gives you something tangible to point to when you’re advocating or you’re meeting with certain decision makers and policy makers so that you can show them what the problem is and hopefully maybe potentially provide them with a solution that they can act on.
Gretchen Miller: And I guess it also becomes, law becomes political as well, because we know the power of the lobby groups, we know the power of the cigarette, the tobacco lobby, for example, and people often kind of laugh slightly cynically about the idea of things being voluntary in terms of codes because sometimes when there’s a big industry behind it that voluntary nature, that’s going to just mean lip service and not genuine action, so it becomes an incredibly tricky space, I imagine, like Australians aren’t quite compliant really in lots of ways, but when do you sort of say okay look, actually we need to make this law and stop fiddling around the edges? When it comes to the public good, and in fact, of course, there’s an economic outcome for the entire country it, for example, people continued to smoke inside.
Maddie Heenan: Yeah, I mean both those points on it being a political issue, it’s obviously a political issue but there’s also the issues get politicised, and that’s, I think, something that we also captured in the synthesis, one of the themes that came out of the work was political environment and considerations, so sort of understanding the context within which you’re working, both in terms of what certain jurisdictions can do, but also sort of knowing maybe what their ideological standpoint is and whether certain policies and regulations are even going to have cut-through with that particular government of the day, and some of our research at the Prevention Centre has touched on things like that, and then the industry relationships and tactics, that was another theme coming out of the synthesis that sort of relates to public health law, and there’s a number of studies that sort of analyse those tactics, and other ones that monitor self-regulatory practice. And so I guess that’s going back to my point about making the case for regulation if you currently have a self-regulatory system, it might work fine but generally speaking in public health it doesn’t, just because of the clear conflicts of interest in these industries promoting harmful products, their remit and their business imperative is to make money, which is the opposite of the public health goal which is for people to consume less of those unhealthy products, so having them regulate themselves is a conflict, there’s not really an imperative for them to do that, so research that can demonstrate that they’re not doing it well, they might be monitoring the industry voluntary guidelines and demonstrating that there’s low uptake of the voluntary code, or there’s no compliance with it or whatever the problem might be, it’s something to sort of point to and to demonstrate that that’s an issue that needs fixing.
Jenny Kaldor: Just to build on that, I completely agree with what Maddie was saying about the importance of evidence in this space and I think sometimes in public health research we’ve been overly focused on those interventions that target individuals and so put on your seatbelt, don’t smoke, consume less salt, these are things, outcomes that we want individuals to do, whereas in other areas of research or policy making or the body of work called regulatory studies, they’ve been more focused on how governments can get businesses or corporations to behave in a different way, so how do you achieve outcomes from institutions, and in bringing the idea of the corporate determinants of health or the commercial determinants of health into public health, this provides the linkage between those two things, so governments can influence corporations to do certain things, which in turn influences the health of the population and individuals within that population. So a good example there is sometimes companies do have a vested interest to, for example, sell products that are high in salt, but other times they’ll be very open to having what they refer to as a level playing field, and I found this in my research on salt reduction in South Africa, companies were not opposed to having a lower salt threshold as long as every company was going to be made to stick to the same threshold, so what they wanted was consistency and ‘mandatoryness’ and they wanted comprehensive coverage of companies across the board, from small, medium, to large, because they didn’t want some companies being able to wriggle out of it, which in a voluntary system they very much could. So I think when we’re talking about the tools ranging from voluntary to mandatory, we also have to think about tools ranging from targeting corporations to targeting individuals and some interventions that are going to be extremely effective at targeting and individuals will not be affected in targeting corporations, and vice versa.
Gretchen Miller: Jenny, I’m going to come back to you in more depth in a moment, but Maddie, before we go on, and perhaps we’ve jumped the gun a little here, can you briefly outline the aims of the Prevention Centre’s knowledge synthesis as you undertook it?
Yeah, the synthesis, it’s a little bit different to like a regular kind of review. I sort of touched on this already by mentioning the policy dialogues that we had.
Gretchen Miller: And that is the critical thing, isn’t it, it’s not to just decide what you’re going to research and go out and research it but to actually engage with the end users, who are the policy makers, and ask them what they want to find out about.
Maddie Heenan: Yes, absolutely, yes, so because we all know that there can be issues with translating evidence into action into policies and into practice, just for a variety of reasons there can be problems and challenges with that, and so I suppose one way to help minimise that is to engage directly with policy makers, with end users, to know exactly what they are needing in terms of evidence and what way we can present that for them as well, and so that was kind of, I guess, the start of thinking about this synthesis and taking a more collaborative approach and a systems sort of approach by embedding policy makers into the process. So what we did is we had like the involvement of a research content lead, a communications lead, which is really important for the translation at the end, and a policy lead to make sure that we had that policy relevance and policy expertise. And the other way that this was a little bit different to a typical systematic or rapid review is we were concerned mostly with the evidence form the Prevention Centre in this first instance, and anyone else that wanted to sort of replicate this work might do otherwise, but we wanted to look at a selective body of work and draw from the research and expertise within the Prevention Centre, so it wasn’t meant to be a comprehensive review of all the evidence in a given area, it was certainly informed by the literature, but the emphasis was more on identifying, drawing out, and synthesising findings and expertise from across our programs of work so we could generate new learnings and insights for both future research and for policy making.
Gretchen Miller: The point is that we do a lot of research into specific topics like food labelling laws or implications for diet and obesity, but we don’t actually look that often about policy, health policy, as it’s applied to a whole range of issues. So Jenny, given the connection of complex moving parts that we’re talking about here, how much do policy makers, researchers, advocates, generally understand about the intersections between law, as someone like yourself understands it, and what they do?
Jenny Kaldor: I think the understanding is probably across the different groups that you’ve mentioned and I think that the understanding can depend on the exposure that people have had, so say in an area of public health policy making such as tobacco control where there’s actually global frameworks and mandatory international treaties that regulate this area, so from the highest levels down to the local government level, it’s law as the tool that is being used for prevention, I think people working in those areas would have a strong understanding of the rule of law in prevention of chronic disease. However, if you’re working in an area like physical activity, perhaps that’s been less on your radar as where the tools of law and regulation even have a role to play, let alone where you might be coming up against barriers due to unhelpful laws and regulations, which is another part that I think we haven’t really touched on yet. I think that another thing that people maybe don’t understand is that evidence means a variety of different things, so you can have the evidence of a public health problem, so evidence that there is a problem might come from epidemiological evidence, evidence of hospital admissions or burden on the health system due to a particular issue, so say hypertension, and then we know that within hypertension one of the causes might be high salt consumption, and then high salt consumption one of the causes might be a particular processed food, and then one of the solutions might be reduce salt in that one particular processed food, so as you can see evidence is multilayered, and then we still haven’t even talked about evidence relating to what kind of interventions are effective or politically feasible. So evidence can relate to things other than simply the burden of disease or the epidemiology, evidence can be how receptive is the political government going to be right now, do we have what is called a policy window, that is actually, that’s not like a kind of finger to the wind issue, that’s actually an issue of evidence that I think sometimes it’s underappreciated that there are researchers in all areas, including social researchers, economic researchers, in addition to the public health researchers and the public health law researchers that have a role to play in putting together the evidentiary puzzle needed to advocate for the role of law in a particular space. And look, sometimes you might put the puzzle together and see that actually law is not the solution to a particular problem, maybe removing a law is the issue, maybe deregulation of a particular space might be helpful, but…
Gretchen Miller: Such as what, what would be an example of that?
Jenny Kaldor: I can think of issues going back to the physical activity example where, for example, there might be particular planning and environmental laws that have gotten in the way of having cycle paths in a particular area or walkability or even like land use, ability of people to use the natural environment or the built environment in a particular way due to what is probably a very sensible or necessary law for another purpose. And so taking public health into account in those other purposes might put another overlay that was not visible in the initial purpose.
Gretchen Miller: Oh, that’s so complicated. And to complicate it further let’s step back and look at an even bigger picture, again via your Lancet Commission article, as you point out the health risks we all face in the 21st century are beyond the control of any one government in any one country, and that means that governments and states need to cooperate, and I wonder if you could speak to global health and public health law, I mean when you wrote that article it was published just about the time when we hit COVID-19 which suddenly became a global concern the likes of which I don’t think we’ve faced in my lifetime with respect to health, yeah.
Jenny Kaldor: Exactly, well as a provocation I could say we have faced it in all of our lifetimes, it just hasn’t seemed acute, so heart disease globally is actually on that scale, we do…
Gretchen Miller: But it’s not infectious, it’s a whole different thing.
Jenny Kaldor: It’s not infectious but it does have the same toll of morbidity and mortality. Road accidents, motor-vehicle accidents are, in many countries of the world, an incredible burden of disease that is amenable to law and regulation as we know, but I will take away my provocative approach and agree that…
Gretchen Miller: I love a bit of provocation, please, provoke away, it’s good.
Jenny Kaldor: It’s true that the most prevalent word we hear about COVID is that it’s unprecedented, but I think one of the things that made it truly unprecedented was that it genuinely galvanised the attention and the resources and the staffing and the money and the focus of the world, and even right at the beginning of the pandemic it mobilised a collective will to actually look out for each other and look out for the most vulnerable by doing unprecedented acts of social justice and solidarity, such as staying home and missing out on work, school, public gatherings, and social events, not necessarily for our own selves but to protect those around us, so I do think that is unprecedented and I think it brought together many themes in a sort of condensed way that hopefully, it is my hope, that we will learn the lessons of COVID and apply them to other more chronic or injury public health issues.
Gretchen Miller: When you wrote the piece though it was pre-COVID, so what were you all thinking about at that time? And I mean my interest is climate is more than an interest, it’s a pressing issue that we should all pay attention to.
Jenny Kaldor: Absolutely.
Gretchen Miller: Was that something that you had in mind, like the health issues that pertain to the global climate crisis?
Jenny Kaldor: Absolutely, and when we framed up the context for the Lancet report there were big, huge driving forces such as climate then leading to rising toll of particular diseases but then leading to climate refugees and refugee health issues being their own specific issues. We were cognisant of the fact that there were other Lancet Commissions specifically addressing climate change and the law and so we tried not to go too much onto that territory because that could actually be the whole story, and we focused on synthesising the evidence from public health law and sort of scaling it up to the global level, recognising that maybe in more developed countries some of the issues are issues about say overconsumption of unhealthy goods, whereas in less developed countries it might be about the under-availability of resources, or malnutrition or things like work, health, and safety, or road, motor vehicle accidents that are still a very high cause of death and injury in many countries around the world.
Gretchen Miller: Okay, you talk about the legal determinants of health, there are four of them, and that’s really interesting terminology because I think we’re perhaps more familiar and more comfortable talking about the social and economic determinants, could you speak to that?
Jenny Kaldor: Yeah, we came up with this term, the legal determinants of health knowing that people would hopefully be familiar with the social determinants of health and we were offering this up as a way to think about the fact that law doesn’t exists in a vacuum, it’s not its own little thing disconnected from society of economics, it in fact is deeply enmeshed with these other things, it underpins and sets the frameworks for many of these ideas. So we were trying to speak about a world in which law could provide sort of an infrastructure within which those other objectives can be met, so the four legal determinants that we identified, the first one was law being used to translate vision into action on sustainable development, so this harks back to a point that Maddie made earlier where you can have a strategy but then if it’s either not funded or not enshrined with legislation then a strategy is just purely aspirational and doesn’t really get you to a concrete outcome. So the Sustainable Development Goals of the UN are goals for all nations to achieve, but law can create some concrete strategies to put those in place and can achieve things like putting a milestone in that then might have a review to measure progress against where you’ve come, and then if things are mandatory then you can report against them or you can fund them, you can do different things to get from a more aspirational statement to a more concrete outcome, I suppose. Our second legal determinant was that law can be used to strengthen the governance of national and global health institutions, so there are lots of health institutions ranging from WHO at the highest level down to really local bodies for health, and within each of those you’ll have legal policies or frameworks governing the way they operate, concerns such as transparency is often an issue for global health, both in terms of funding and who institutions deal with, so who they take their money from and who influences the direction of their policy. So this kind of ties into a conversation we’re having nationally in Australia at the moment about integrity commissions and so on, but it’s sort of using that kind of idea in the space of global health. Just talking too much. Our third legal determinant was the one that we’re probably most familiar and that we’ve most talk about so far in the discussion, which is the idea of law as a tool, so law can be used to implement what we described as fair, evidence-based health interventions, and these are our specific legal interventions in health, such as plain packaging, mandatory plain packaging on cigarettes, or something like mandating the nutrition fact panel on all packaged foods, mandatory seatbelt wearing, health and safety regulations which all businesses must abide by, so the sort of big interventions that require law to implement them. And our fourth one, which is I think gaining a bit more traction at the moment and it is the idea of legal capacity for health and building that legal capacity, strengthening it for the future, this is about the linkages between law and public health and better training across both disciplines in order to upskill lawyers in public health and public health people in what benefit law can bring, this is, I’ve been very sort of delighted to see in the years since I moved from being a lawyer to being a public health legal practitioner there’s just been a huge influx of people with an interest or moving from one profession to the other, either doctors who want to understand more about law and policy, or lawyers who want to upskill by doing an MPH or working in the health context, and so instead of only having maybe academic understanding or academic expertise it’s actually that practitioner based, so that then there’s strong linkages between research and implementation and policy makers, and hopefully, I don’t know if we’ll ever see law firms that specialise in public health law but we may at least see specialist bodies with the technical expertise to assist in these problems.
Maddie Heenan: Yeah, I think that particular report and the legal determinants of health, that expression or whatever you want to call it and the actual points that Jenny went through, I found them really useful throughout my work, like the synthesis, but other stuff, just to sort of I guess help bridge some of that divide between people working in public health and people who have more of a legal background. So like I’m not a lawyer but I’ve worked in policy and regulation and the sort of term public health law even was a bit new to me, and I find that a lot of people working in government also aren’t necessarily familiar with that term, I think because it comes from America that it’s maybe a little bit different, a little bit new, and I think maybe that’s also why sometimes there’s a bit of disconnect with some of the definitions and understanding in the area, and I think kind of conceptualising the legal determinants of health puts it in a lens that’s familiar to a lot of people, and so yeah, I think that’s a really great piece of work.
Gretchen Miller: What I found really interesting Jenny about the way you framed that outline of the legal determinants of health is you mentioned social justice as a bit of a key driver, and I’m thinking now about social justice as a term because we tend not to associate it with actual legal frameworks but ethical and moral ones, can you speak to that social justice law public health intersection?
Jenny Kaldor: Yeah, I think that’s a really, really important point, social justice is at the core of public health but it always, it is not always at the core of legal practice, even though depending on who you ask it really should be, and when you think about legal practice as being, it should be things like everyone having the right to a fair trial or issues like equality before the law, but in reality it might often be that vested interests have a lot more clout or access to the courts or access to expensive lawyers and so on, so if we’re talking about public health where it’s issues like equality and fairness and ensuring that people have the opportunity to live a flourishing life where they can achieve their highest level of wellbeing and health, and so it’s trying to combine those ideas of what can the law do to set a level playing field for people to achieve that, what are the legal structures tat are fair and transparent and open to community consultation, community participation, shared design, the ability for people who are users or stakeholders of the law to actually have input into its development, rather than only being something that is imposed from above, and I think that’s a concept that can be sometimes really challenging to us, even in a democracy where we, at an intellectual level we know that we elect our representatives and they work for us, but we don’t always think of ourselves as maybe end users or stakeholders to the laws being enacted.
Gretchen Miller: A specific example of this, I think, is universal health coverage, such a big concept, can you explain how law can do this, given the multitude of jurisdictions it would be applicable to, and it’s not just about jurisdictions, is it, it’s about culture. I think Australians, for example, find it mind boggling that Americans would say we don’t want universal healthcare, we want to all have to struggle and fight and perhaps die on the streets because that’s our right as individuals, so it’s not just jurisdictions, it’s cultural, it’s all number of things.
Jenny Kaldor: So Maddie was talking about earlier inter- or intra-governmental arrangements, so even the existence of, take Medicare as an example, there are statutes that establish Medicare, there are statutes governing how it works, eligibility for certain benefits, access to who is covered by it, so if you’re a citizen or a resident of Australia, you have access to the scheme but then certain other people such as refugees might be able to gain access, so that is all set down in legislation and regulation and it’s, I think, often misunderstood as a purely economic arrangement, but it’s underpinned by policy decisions that are implemented through law, and when countries are seeking to expand their universal healthcare access, it’s a really complex task to, I guess, disentangle and then rebuild the governance arrangements that helped to support universal health coverage.
Gretchen Miller: You make a number of recommendations in that key paper for the Lancet, too numerous and complex to list here but we’ll certainly provide a link to it on our website, but can you talk to the broad intention of those recommendations?
Jenny Kaldor: Yeah, I guess the overarching intent, and without sounding too self-serving , because it weas a group of experts on law and public health, was really to increase the awareness of the possibilities of what better understanding and better linkages and better resourcing for law can actually do to improve global health, so understanding what already exists and mapping the potential, and then what are the gaps and how can we realise that potential through adding or enhancing the capacity that is already there.
Maddie Heenan: I just wanted to sort of add to that point, but also to Jenny’s earlier comment about participatory governance and the involvement of the community in regulatory design and electing officials so that they can see the particular policy objectives that they want to see for the future, I think, but that’s something that really comes out of some of this work in the synthesis, but also other work that we’re doing at the Prevention Centre also speaks to the points that we were talking about earlier about advocacy, by kind of talking about this field of work we’re, I guess, making people more aware that it even exists, because it’s not exactly new work but it’s kind of like newly categorised or like defined and maybe previously occurring in sort of siloed areas, so it’s now kind of more coming together, and I think demonstrating that there’s different types of evidence for different purposes in the policy process, but then also the need to have community engagement, understanding their support for things, but also having them actually involved in design and participation, whether that be directly or indirectly through advocacy means, I think, is really kind of important and something that’s kind of highlighted in this work, and in some other work that we’re doing as well.
Gretchen Miller: So as we draw to a bit of a close just tell me a little about your PhD thesis, Jenny, because you finished that not that long ago, although of course you’ve got some years of work in the field behind you, you argued for mandatory nutrient limits, which is your term, this again could be a global legally-binding concept, because as you say unhealthy diets are a major risk factor of the non-communicable disease, the leading cause of morbidity and mortality, could you speak to that a bit?
Jenny Kaldor: Yeah, so at I guess the highest level I was really interested in policy innovation in this space, so I think often in discussions about how to achieve particular public health outcomes, and in this case a healthier population diet, we can get stuck in a rut about the policies that we’re very familiar with, so things like health promotion we all know the healthy food pyramid or campaigns to eat more healthy or nutrition facts being provided, and I wanted to shift the conversation away to maybe a little bit more looking at policy outliers that had been innovative but had actually resulted in uptake amongst different jurisdictions, and I had the senses that mandatory nutrient limits, which was a term I coined, I had a sense that they were being implemented but it wasn’t until I undertook an empirical study that I found that 30 countries around the world had actually implemented, using a range of legal instruments but mainly food standards, had implemented upper limits on salt and fat in a variety of processed foods, and that was very interesting to me because it ran counter to a lot of the sort of dominant narratives that we have about what is possible or achievable in this policy arena. So a lot of the time we’re told, ‘Oh, it’s not possible to legislate in this arena because of the nanny-state debates’, or ‘It’s not possible to do this because vested interests will kick up a fuss and the food companies don’t want this’. So firstly I undertook a mapping study to show that actually 30 countries had implemented such laws, so clearly there’s already a bit of evidence to the contrary of these dominant narratives, and then I did two case studies of quite different jurisdictions, South Africa was one which implemented mandatory nutrient limits in relation to sodium, and Denmark was the other which implemented mandatory nutrient limits for trans fats, and essentially did a policy making study of both countries and how those limits came to be introduced, and found that all sorts of factors were at play from sort of meticulous planning and gathering of evidence, all the way down to kind of serendipitous openings of policy windows and all of these thigs were relevant, but a lot of the story that I found was that things that we tell ourselves, like the industry will kick up a fuss, were not in fact true in these cases, and that suggested that when we’re looking for policy innovations we have to retain an open mind and look at what’s actually happening on the ground so what’s occurring in practice as opposed to what are the theoretical things telling us. As a researcher I am very interested in theory and I’m very interested in frameworks, but I’m also interested in when the theories and the frameworks don’t stack up to real life, and so I was keen to bring together, I guess, bodies of research that don’t always speak to each other, so the body of regulatory studies on one hand, and then the body of public health law on another hand, and then policy making studies to get to really drill down into the studies and understand, bringing together overarching theoretical ideas but then like really concrete, empirical evidence to try and move beyond those very academic discussions.
Gretchen Miller: And what’s super interesting about this is that you’ve got a developed country and a developing country both doing this.
Jenny Kaldor: Exactly.
Gretchen Miller: So that counters a few other dominant narratives as well, I think.
Jenny Kaldor: Well that’s right, and they both had, in some ways, different imperatives for implementing mandatory nutrient limits but some very similar shared values. So in South Africa, and this goes to what I was talking about with the chain of evidence that has to be kind of strung together like beads on a necklace to build your case for prevention in South Africa, it was discovered that hypertension was an issue, that high salt was contributing to that, that many people, especially poorer people who couldn’t afford a more diverse diet, were eating up to six slices of white bread a day and that white bread was one of the highest sources of sodium in the South African diet, so already you can see there’s, even in that one statement, there’s a number of different evidence bases to go into, so the dietary composition but then the macronutrient makeup of the bread is like two separate sources of evidence, and then an intervention study had to be carried out showing that if you replaced the higher sodium bread with a lower sodium bread did it actually reduce hypertension in the target population, and then finally the researchers who carried that out sort of doggedly pursued the Health Minister at the time, and the Health Minister at the time happened to have a newly installed NCDs bureaucrat who knew a lot about non-communicable disease prevention, and was open to this idea, so it’s sort of the serendipitous alignment of minister and bureaucrat, and then the fact that a big WHO conference was coming up soon or a big UN conference where South Africa was keen to show leadership in this area. So all the little pieces of the puzzle had to align, and it was, to me, a reminder that you can do all the planning and research and advocacy in the world, but if a policy window doesn’t open up you may actually get nowhere. So a bit of a reality check, and, as someone who has worked across academia and government, interesting to see these things as they play out, rather than as we always would like them to play out.
Gretchen Miller: Maddie, what did you find via your knowledge synthesis regarding the role of public health law in prevention in Australia, what was the outcome of your synthesis?
Maddie Heenan: Yeah, well I guess there were a couple of main things, I suppose this particular piece of work was a bit more of a mapping exercise to sort of, I guess, look at what the body of work was in this space, and we found there were 12 projects and 40 publications that the Prevention Centre had funded that was relevant to public health law, and when we looked at the type of research undertaken they were largely regulatory analyses but also studies that were developing new methods or indicators to support evaluation, studies investigating governance and policy frameworks, evaluating impacts on health or behavioural outcomes, other research looking at the perspectives on regulation, and industry relationships and tactics, so I suppose they’re the ways, they’re the categories of research, as we sort of define them, and we’ve been talking about all these different categories of evidence throughout the podcast as well, so I guess it just sort of demonstrates how you need lots of diverse, different types of evidence to suit different needs within the public health law and policy landscape. And then we also undertook a thematic analysis and as part of that we identified five main themes from all of the included studies and I guess, again, this is kind of focusing on a bunch of things that we’ve already touched on, so it’s just sort of, I guess, emphasising our points that monitoring and evaluation are really important. We found a lot of political environment and considerations were a key focus within the research, regulatory design implementation and enforcement, so things looking at, I guess, key design features, what elements of the regulation make it effective, are they monitored and enforced, and engagement collaboration and coproduction, so research that looked at working with other departments, so co-benefits type research, also working with communities, so there was one study that looked at community-driven alcohol regulation, and studies that looked at equity and disadvantage, so they were just sort of, I guess, the broad range of different topics of research that public health law research really focuses on.
Gretchen Miller: And so what happens after this, having done this knowledge synthesis, what comes next?
Maddie Heenan: Yeah, well we’re just in the process of finalising the report which is exciting, and part of that will be also creating some more, some key messaging from that, and maybe policy brief and a summary brief, so that it’s not just a big report for people to be reading, and yeah, the bits that come next are just to demonstrate the importance of investment within this space and in this type of research, so public health law can really help make the case for prevention, and there’s a wide range of different strategies that can be used. And so I think what this synthesis really demonstrates is that it provides a lot of different case studies of really diverse work, things focusing on the built environment, on tobacco, on food, things, as I said, looking at monitoring and evaluation and then community surveys asking their thoughts on particular policies, so there’s’ a lot in there. I think it will be interesting and useful to a range of different people.
Gretchen Miller: And Jenny, what happens next for you in your new work, but also in this field, as it’s evolving globally?
Jenny Kaldor: Yeah, well, so in a couple of weeks I’ll be wrapping up here in Tasmania in public health where I’ve been 100% working on COVID-19 policy and I’ll be sort of stepping into a different space with WHO in Manila, so that will be, I guess, a broader range of public health issues, but also a wider scope, so from the local or state-based to the regional-based, so it’s going to be interesting and I think quite challenging. What I’m really excited about is the expansion of possibilities for public health law careers that I think COVID-19 might have put on people’s radars. Before I started my PhD, like when I was a lawyer trying to move into public health, people used to say to me, ‘What does law have to do with public health?’, I used to get that question a lot, and they really don’t ask that question anymore. I think one of the silver linings of the pandemic is that it’s really explained what law has to do with public health and that a lot of things that we take for granted in our life to safeguard or promote public health are actually legal and regulatory frameworks, and I like to think that if I was a young lawyer coming up through law school now I might consider public health as a career, and that there will be scope to, not just leave your law degree behind and go into the public service as a generic policy person, but to bring the true skills of public health law, and then as those possibilities expand there’s a sort of a gain that’s made by then having more expertise that can be shared, more knowledge, more mentoring, and more scope to develop within the really cross-disciplinary profession that is public health practice.
Gretchen Miller: Absolutely wonderful.
Maddie Heenan: I did just want to add to Jenny’s point about the field kind of growing and there being a sort of renewed and new interest in it, at the Prevention Centre we also have a community of practice on public health law and that’s researchers and policy makers and practitioners coming together to sort of hear about different types of work that they’re doing, whether that’s in research or practice, it’s not a big group but it’s growing every single time, which I think is really exciting, and I think a lot of people are curious about the are and want to kind of do and know more, so that’s another really exciting thing that we’re doing at the Prevention Centre, and Jenny has actually been a presenter for that session too, which is cool.
Gretchen Miller: What a great place to leave it. It’s been an incredible conversation, really appreciate your time. Dr Jenny Kaldor and Maddie Heenan, and listeners, you’ll find more information on the Prevention Centre’s website. I’m Gretchen Miller, see you next time.
[End of recording – 53:37]
Join Dr Jenny Kaldor, lawyer, researcher, and policy analyst, and Maddie Heenan, Research Officer and PhD candidate, as they delve into how law, policy, and regulation affect public health, and what methods can help us better understand these relationships.
Jenny took a brief advisory role in the knowledge synthesis on public health law, regulation, and policy for prevention, which draws lessons from across nine years of projects. Maddie coordinated the knowledge synthesis, and has worked in advocacy for the Foundation for Alcohol Research and Education and is currently working as a Research Officer with the Prevention Centre while undertaking a PhD with The George Institute for Global Health.
Public health law, regulation and policy for preventionResource category: Knowledge SynthesesDate
• Public Health Law, regulation and policy for prevention: Synthesis of knowledge by the Prevention Centre
• Public Health Law community of practice
• Lancet Commission on the Legal Determinants of Health