HealthLawProf Blog

Judge Sutton More Persuasive Than Judge Hull

We now have a Clinton appointee in the 11th Circuit who has sided with the opponents of the individual mandate. Ostensibly, this balances the Bush appointee in the 6th Circuit who sided with the proponents of the mandate. But Judge Jeffrey Sutton's opinion in the 6th Circuit is much more persuasive than Judge Frank Mays Hull's joint opinion with Judge Joel Dubina in the 11th Circuit.

Judges Dubina and Hull unreasonably discounted a few critical considerations. First, they recognized that the individual mandate may be justified as a means for Congress "to enforce its regulation of the health care industry" (page 164). And of course the individual mandate was adopted to make it possible for Congress to prohibit higher premiums for people with "preexisting conditions." If insurers soon must charge all comers the same rate, then individuals cannot be allowed to wait until they are sick to buy their health care coverage anymore than people can wait until their houses are ablaze to buy their homeowners insurance. Oddly, Dubina and Hill wrote that the implementation of Congress' ban on premium discrimination is not "in any way dependent on the individual mandate" (page 164).

Moreover, if the question is whether the individual mandate is necessary for implementing the ban on preexisting conditions clauses, then Dubina and Hull made the case very well when they observed that the federal flood insurance program has failed for lack of any purchase requirement by homeowners in flood plains (pages 117-119). And even under Dubina and Hull's understanding of the Commerce Clause power, Congress could mandate the purchase of flood insurance by making it a condition of purchasing a home in a flood plain.

Dubina and Hull also acknowledged that the key question for courts is whether the individual mandate preserves “'a distinction between what is truly national and what is truly local'" (page 104). Yet they took the surprising position that regulation of the health care industry is a matter of local concern even though the U.S. Supreme Court held 67 years ago that the commerce clause power permits Congress to regulate insurance companies. To be sure, as Dubina and Hull observed, Congress has chosen to leave much of insurance regulation to the states, but that reflects a decision by Congress not to exercise its full commerce clause power rather than a constitutional limitation on the power of Congress to regulate.

These and other weaknesses in the Dubina-Hull opinion reflect the same mistake other critics have made. The proper way to understand the individual mandate is to ask whether Congress can regulate the rate-setting practices of health insurance companies and whether the individual mandate is an appropriate component of such regulation. Dubina, Hull and other critics see the individual mandate much more as if it were a free-standing provision that must be justified without reference to its role in carrying out the full Patient Protection and Affordable Care Act.  

[DO]

Nicolas P. Terry: "Fear of Facebook: Private Ordering of Social Media Risks Incurred by Healthcare Providers"

For an excellent read, Nicolas P. Terry, Professor of Law at Saint Louis University School of Law and blogger extraordinaire on Health Law Prof, has published on SSRN the article " Fear of Facebook: Private Ordering of Social Media Risks Incurred by Healthcare Providers." Here is the abstract:

The last two years have seen important quantitative and qualitative shifts in social media use patterns in the healthcare environment. Reacting to present and future risks there has been a rapid deployment of private ordering: social media policies and other contractual constructs emanating from physicians, professional organizations, employers and educators. These private, often contractual attempts to regulate online interactions or social media conduct are not all benign, themselves creating ethical or legal risk. This article, a follow-up to Physicians And Patients Who ‘Friend’ Or ‘Tweet’: Constructing A Legal Framework For Social Networking In A Highly Regulated Domain, 43 IND. L. REV. 285 (2010), concentrates on social media and these new risk management constructs. Part II provides updated statistics on Internet use by healthcare workers and explores some of the scenarios that have led medical schools and healthcare entities to expressly address social media behavior. Part III inquires into how professional organizations or those who employ or credential physicians have attempted to change the rules of the game by promulgating social media policies and analyses some of the legal constraints on those policies. Part IV deals with the reality of medically relevant information about patients increasingly moving online and asks whether physicians should attempt to access information that might be useful or even life-saving. Finally, Part V describes how the patient-physician dialog has increasingly spilled out of the consulting room and onto social media sites and explores how physicians should react not only to overtures for social media friendship but also to online critical patient comments.

[KVT]

11th Circuit – Broccoli wins!

Hat tip to the Incidental Economist where Kevin Outterson has posted the following:  

I wanted to actually read the opinion before I posted (radical, I know). We have 3 votes that the Medicaid expansion is constitutional and that the individual mandate is fully severable. The court splits 2-1 on whether the individual mandate violates the Commerce Clause, with the majority answering in the affirmative.  The winning argument was broccoli, not inactivity.

No one should report this decision as “ObamaCare is unconstitutional.”  The most you can say is “two judges decided the individual mandate is unconstitutional under the Commerce Clause, but would have been constitutional if it had been more explicitly designed as a tax. The rest of health care reform is constitutional.” 

1.  Standing

I’ve argued before that the States don’t have standing to bring a challenge to the individual mandate.  This issue was briefed before the 11th Circuit, but the opinion sidesteps the issue entirely (at 10) since it is clear that the individual plaintiffs and NFIB have standing. Of course, it would have been big news if the states had been dismissed from the suit and it would have made it abundantly clear that this ruling only applies within the 11th Circuit.  (Some AGs improvidently claimed that the district court ruling applied in their home states as well).  The 11th Circuit missed a chance to dramatically reduce the number and type of plaintiffs.

After more than 40 pages summarizing the PPACA, the court reaches 3 substantive constitutional issues:  the Medicaid expansion under the 10th Amendment; the individual mandate under the Commerce Clause; and the individual mandate under the Tax Power.

2.  Medicaid Expansion

Red states have argued that the Medicaid expansion is unduly coercive as a “take it or leave it” offer from the federal government.  The relevant case is South Dakota v Dole, where the Supreme Court allowed the federal government to condition federal highway funds on state compliance with related laws such as the drinking age.  Under the Spending Clause, federal restrictions must be “reasonably related to the legislation’s stated goal.” (Dole at 207, 11th Cir at 56)  The states conceded the constitutionality of the Medicaid expansion under this test, but argued that it nonetheless violated the 10th Amendment by removing state choice and compelling states to act, with no other options (at 57).  This is the “commandeering” or “coercion” doctrine in the context of the Spending Clause.

The 11th Circuit found no coercion, for four reasons.  First, the states were told from the beginning that Medicaid could be modified unilaterally by the federal government, and Congress has not disappointed on that score (at 63-64).  Second, the feds pay for the lion’s share of the expansion costs (at 65-66). Third, unlike used care sales people who force you into a quick decision, states have 4 years to decide whether to participate.  Finally, the court finds that HHS need not cut all Medicaid funding for a non-compliant state; lesser punishments might follow a state’s decision.

3. Commerce Clause & Necessary and Proper Clause

As expected, the decision turns on the Commerce Clause substantial effects doctrine, as interpreted in Lopez, Morrison, and Raich, and a narrow view of the Necessary and Proper Clause from Comstock.  After a summary of the cases, the analysis begins on page 100. The court rejected the activity/inactivity distinction, popularized by Randy Barnett:

Nevertheless, we are not persuaded that the formalistic dichotomy of activity and inactivity provides a workable or persuasive enough answer in this case. Although the Supreme Court’s Commerce Clause cases frequently speak in activity-laden terms, the Court has never expressly held that activity is a precondition for Congress’s ability to regulate commerce—perhaps, in part, because it has never been faced with the type of regulation at issue here. (at 109)

But the good news for ACA doesn’t last, as the opinion finds the individual mandate unconstitutional, not so much for its own sake, but for the sake of the children. The court discusses a parade of horribles, things (like broccoli) that Congress could force us to buy.  The Court demands “sufficient and meaningful limiting principles” (at 113) that would prevent the government from making us buy broccoli:

From a doctrinal standpoint, we see no way to cabin the government’s theory only to decisions not to purchase health insurance. If an individual’s mere decision not to purchase insurance were subject to Wickard’s aggregation principle, we are unable to conceive of any product whose purchase Congress could not mandate under this line of argument (at 125).

In the end, the individual mandate is unconstitutional because the USG didn’t come up with a constitutionally relevant way to distinguish health insurance from broccoli.  Mariner, Annas & Glantz tried to do exactly that in the NEJM last January.  (The dissent discusses broccoli at 269)

The opinion offers several escape routes, akin to what Austin and I suggested previously:  carrots and sticks to encourage participation in the insurance market in lieu of a mandate. (Here’s another idea: delay Medicare & Medicaid eligibility by a month for every year a person doesn’t maintain coverage.  Clearly constitutional.)

The majority acknowledge that Massachusetts and New Jersey have apparently legal health insurance mandates (at 156), but goes on to say:

But if anything, this gives us greater constitutional concern, not less. Indeed, if the federal government possesses the asserted power to compel individuals to purchase insurance from a private company forever, it may impose such a mandate on individuals in states that have elected not to employ their police power in this manner.124 After all, if and when Congress actually operates within its enumerated commerce power, Congress, by virtue of the Supremacy Clause, may ultimately supplant the states. When this occurs, a state is no longer permitted to tailor its policymaking goals to the specific needs of its citizenry. This is precisely why it is critical that courts preserve constitutional boundaries and ensure that Congress only operates within the proper scope of its enumerated commerce power.

In order to distinguish Raich, the majority opinion minimizes the estimated damage that would flow from a repeal of the individual mandate (contrasting it to the “gaping hole” that Raich would have left for recreational marijuana use) (at 166).  I agree (would have been nice to cite us).  The court goes on to chide Congress for not making the individual mandate harsher, suggesting that tougher tax penalties might have improved the constitutional argument (at 166):

Eschewing the IRS’s traditional enforcement tools, the Act waives all criminal penalties for noncompliance and prevents the IRS from using liens or levies to collect the penalty. Id. § 5000A(g)(2). Thus, to the extent the uninsureds’ ability to delay insurance purchases would leave a “gaping hole” in Congress’s efforts to reform the insurance market, Congress has seen fit to bore the hole itself.

Finally, in a strange twist, the opinion attacks the individual mandate as “overinclusive” – covering both free riders and the (rare) person who will never obtain either health insurance or free care (126-31). In a truly disappointing section for libertarians, they suggest a more individualized process for determining whether the individual mandate should apply to a particular person.

“Tell me, Mrs. Bachman, are you now or have you ever been, or do you ever intend to be, a card-carrying member of a health plan?”.

4. Tax Power

If only Congress had imposed a tax on free riders, the case would be over (172-189).  (prior TIE coverage on the tax issue)  I propose this as the “constitutionally relevant” limiting principle needed for the Commerce Clause:  the fact that the provision would have been clearly constitutional as a tax.  Especially when the individual mandate is placed by Congress in the Internal Revenue Code.

5. Severabililty

As we’ve noted before, it makes no sense to kill the excise tax on devices, or to reverse transparency in gifts to physicians, or to kick people off Medicaid because the individual mandate is unconstitutional.  The court agrees, but takes a more careful look at 2 insurance related provisions:  guaranteed issue and the prohibition on preexisting condition exclusion (194-95).  This is a thoughtful approach:

our severability concern is only whether “it is evident” that Congress “would not have enacted” the two insurance reforms without the individual mandate. (at 197)

The conclusion:

In light of all these factors, we are not persuaded that it is evident (as opposed to possible or reasonable) that Congress would not have enacted the two reforms in the absence of the individual mandate. (at 204)

My summary of this opinion:  “two judges decided the individual mandate is unconstitutional under the Commerce Clause, but would have been constitutional if it had been more explicitly designed as a tax. The rest of health care reform is constitutional.” 

[KVT]

Breaking News: 11th Circuit Strikes PPACA Individual Mandate, Creates Circuit Split

 According to BNA Reports:

In a 2-1 decision, the U.S. Court of Appeals for the Eleventh Circuit Aug. 12 struck down a key provision of the federal health reform law, but stopped short of declaring the entire statute unconstitutional (Florida v. HHS, 11th Cir., No. 11-11021, 8/12/11).

The court held in a 304 page ruling that Congress exceeded its powers under the U.S. Constitution's commerce clause when it enacted the individual mandate, a provision scheduled to take effect in 2014 that would require most Americans to buy health insurance or pay a penalty.

In an opinion by Chief Judge Joel F. Dubina, joined by Judge Frank M. Hull, the court said Congress could do many things under the commerce clause, but one thing it could not do was “mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die.”

“The federal government's assertion of power, under the Commerce Clause, to issue an economic mandate for Americans to purchase insurance from a private company for the entire duration of their lives is unprecedented, lacks cognizable limits, and imperils our federalist structure,” the court wrote.

The Eleventh Circuit, however, declared the mandate severable from the remainder of the Patient Protection and Affordable Care Act (PPACA). In invalidating the entire act, the court said, the U.S. District Court for the Northern District of Florida placed too much weight on the fact that the act lacks a severability clause. The proper test, it said, was whether Congress would have enacted the statute in the absence of the individual mandate provision.

The decision sets up a circuit split, as the U.S. Court of Appeals for the Sixth Circuit July 7 held the individual mandate constitutional. In another split decision, the Sixth Circuit said in Thomas More Law Center v. Obama that the individual mandate “falls within Congress's power to regulate activities that substantially affect interstate commerce.” Thomas More Law Center filed a petition for review with the Supreme Court July 26. The circuit split ups the odds that the U.S. Supreme Court will grant review in at least one of the cases.

[KVT]

Individual Mandate and the 11th Circuit

The opinion is here

Announcement of Conference for the Feminist Legal Theory Collaborative Research Network

I am reprinting this posting for the many health law professors interested in or inspired by feminist legal theory:

Feminist Legal Theory Collaborative Research Network

January 2012 Conference

Invitation and Call for Papers

The Feminist Legal Theory CRN is a newly-constituted group that seeks to bring together scholars across a range of fields who are interested in feminist legal theory. The inaugural meeting took place at the Law and Society Association meeting in June 2011; the next meeting will be held at George Washington University Law School on Wednesday, January 4, 2012, the day before the AALS annual meeting.

Paper proposals on any topic pertaining to legal feminism are being accepted until September 23, 2011. For instructions on registering, submitting a proposal, or participating in this and other activities of the Feminist Legal Theory CRN, please see the detailed information posted here:  http://www.feministlawprofessors.com/2011/08/invitation-call-papers-feminist-legal-theory-collaborative-research-network-january-2012/ .

[FP]

Worth Reading This Week

Daniel A. Farber, Environmental Disasters: An Introduction, SSRN 

Ed Richards, Legal Strategies to Manage Obesity and Increase Physical Activity, SSRN

Joanna Sax, Financial Conflicts of Interest in Science, SSRN

Leonard Glantz & George Annas, Impossible? Outlawing State Safety Laws for Generic Drugs, NEJM

[NPT]

 

Limiting Use of Antibiotics in Food Animal Production After Recall of 36 Million Pounds of Turkey Containing Antibiotic-Resistant Salmonella

Finding antibiotic-resistant Salmonella in ground turkey prompted Cargill's 36 million pound turkey recall. It also triggered a new sense of urgency on the part of lawmakers to encourage the FDA take action on  a draft guidance, "The Judicious Use of Medically Important Antimicrobial Drugs in Food-Producing Animals," otherwise known as "Guidance #209."

Previously blogged about here and here, recent estimates indicate around 80 percent of all antibiotics in the U.S. are given to food animals causing a huge and growing problem with antibiotic resistant bacteria. According to Food Safety News,

Guidance #209, as it was released last summer, recommends two principles: (1) The use of medically important antimicrobial drugs in food-producing animals should be limited to those uses that are considered necessary for assuring animal health, and (2) The use of medically important antimicrobial drugs in food-producing animals should be limited to those uses that include veterinary oversight or consultation.

The letter from the lawmakers urges that the FDA make "speedy progress forward" on Guidance #209 regulations to help preserve the efficacy of antibiotics for human health:

We recommend that you strengthen Guidance #209, finalize it quickly, and move on to regulations. Given the rise of antibiotic resistant pathogens, we cannot wait any longer for the finalization of Guidance #209. 

[KVT]

Health Compliance Program & Conference at Indianapolis

The Indiana University School of Law – Indianapolis' Hall Center for Law and Health is launching a major initiative in biomedical and health industry compliance law. To launch the program, the Hall Center is convening an Inaugural Biomedical and Health Industry Law and Compliance Conference on September 21, 2011 at the law school. The focus of the conference is law and compliance, with special emphasis on emerging compliance trends, fraud and abuse, enforcement and pharmaceutical and manufacturing issues. The keynote speaker is Joyce R. Branda, Director of the Fraud Section of the Commercial Litigation Branch at the U.S. Department of Justice, who will speak on “Health Care Reform and Health Care Fraud Enforcement.”  More information here.

The Consortium on Law and Values at the University of Minnesota Seeks Applicants for the Associate Director for Research & Education Position

The Consortium on Law and Values in Health, Environment & the Life Sciences builds on the strengths of 19 centers and programs, establishing a national identity for the University of Minnesota as a leading institution working on the societal implications of developments in health, environment, biomedicine, and the life sciences. The Consortium is seeking outstanding applicants for the Associate Director for Research & Education position. The Associate Director conducts research relating to law, biomedicine, the life sciences, and bioethics; collaborates on grants, including identifying funding opportunities; generates original scholarship; teaches and mentors graduate and professional students; and may serve as Faculty Editor-in-Chief of the Minnesota Journal of Law, Science & Technology. Application review will begin September 30. The full position description and application instructions are here. [KVT]

Employment Report Shows Health Care Added 31,300 Jobs

According to the WSJ Health Blog, "the U.S. economy added more jobs than expected last month. And the health-care industry showed particular strength, with 31,300 new jobs — higher than the average monthly increase seen in 2007, before the recession hit." [KVT]

ASLME to Convene Conflicts of Interest in the Practice of Medicine: A National Symposium

The American Society of Law, Medicine & Ethics (ASLME) is proud to announce that online registration is now open for the upcoming national conference entitled “Conflicts of Interest in the Practice of Medicine and Medical Research.”  

Researchers, clinicians, and the public are increasingly concerned about the effects of conflicts of interest in medicine.  Studies have shown that sources of financial support impact the design and outcomes of biomedical research and the reporting of results.  Physicians’ financial relationships can strongly affect the care they provide to patients.  Because eliminating potential conflicts of interest is essentially impossible and may even be harmful, some have called for enhanced transparency about conflicts, while others have sought more strict regulation in this field.  Innovative perspectives on managing conflicts of interest in medicine have emerged from an array of disciplines, including physicians, lawyers, economists, and other social scientists, but there have been few opportunities for members of these fields to share their ideas in one forum. The ASLME conference seeks to bring these disparate points of view together to inform and shape policy on this topic.

The conference is generously funded by a grant from the Highmark Foundation of Pittsburgh, Pennsylvania, with additional funding contributed by the Jewish Healthcare Foundation and by The University of Pittsburgh School of Law.  The conference is scheduled for October 27-28 in Pittsburgh.

Conference Goals: This one-and-a-half day conference will feature an array of recognized national experts from academia who will discuss, debate, and propose best practices and approaches to the problem of conflicts of interest. This conference intends to foster a cross-disciplinary perspective on pertinent issues, and by the end of the conference, attendees will (1) learn about current consensus panel recommendations regarding management of conflicts of interest, (2) be able to describe remaining challenges to regulating conflicts of interest in key areas of research and medical practice, and (3) help fashion recommendations for the key players and identify other key steps in moving forward. The findings of the conference will be published in a special issue ofThe Journal of Law, Medicine & Ethics, a leading health law journal read by many academics and policymakers in this field.

If you have any questions or would like more information about the conference, please email Katie Johnson at kjohnson@aslme.org. [KVT]

Researchers Use Nanotech to Develop Pocket-Size Sensor to Detect 'Date Rape' Drugs

In one of the many ways nanotechnology is being used to improve our world, a new line of defense to sexual assault has been developed by scientists. This tool is an easy-to-use sensor that, when dipped into a cocktail, will instantly detect the presence of a date rape drug. When ready for commercial purchase in just a few years, the sensor will be lightweight and discreet, easily transportable in a pocket or purse.

According to ScienceDaily,

With rates of drug-assisted sexual assault growing around the world, it's a dangerous social problem in desperate need of a solution .... According to the U.S. Department of Justice, some 200,000 women were raped in the US in 2007 with the aid of a date rape drug -- and because so many cases go unreported, the actual number is believed to be 80 to 100 percent higher.

[KVT]

Recent Steps Taken to Regulate Expert Testimony in Med Mal Cases

Move over, Daubert -- here’s an interesting article in the online American Medical News about states tightening up expert testimony in medical liability cases.

Florida is the latest state to pass restrictions on the use of expert witnesses in medical liability cases. Under a law signed July 1 by the governor, out-of-state physicians offering expert testimony must apply for a certificate to testify. The state medical board can discipline them if they provide deceptive testimony.

"Before, there was absolutely no accountability for what [expert witnesses] did in Florida," said Jeff Scott, general counsel for the Florida Medical Assn. With the new law, "you can't come into Florida and testify falsely and hope to get away with it."

At least 30 states have similar expert witness laws. Some statutes, such as Arizona's, require witnesses to practice in the same specialty as the physician defendant. Others, like Maryland's, mandate that doctors spend a certain amount of time actively practicing medicine

Hat tip to Patricia Hatamyar Moore over at Civil Procedure and Federal Courts Blog. [KVT]

A New Blog By The O’Neill Institute for National and Global Health Law at Georgetown University

The O’Neill Institute for National and Global Health Law has launched its new blog here and it makes for excellent reading! According to the announcement posted by Lawrence O. Gostin 

the blog is meant as a forum for thoughtful dialogue on pressing issues in health law and policy.  It will also be an additional venue for us to keep in touch with our friends and colleagues on current events at the O’Neill Institute, including highlights from our robust research program, graduate degree program, fellowship program, and institute scholarship.

Launched in 2007, the O’Neill Institute at Georgetown University has blossomed into the premier academic research center for national and global health law and policy. Our research encompasses a diverse range of national and global health law topics, from health reform in the US and China, tobacco control globally and in Latin America, global infectious and non-communicable disease prevention, and global health governance. The UN Secretary General recently endorsed the founding vision of the O’Neill Institute—a Framework Convention on Global Health.

Click this link to sign-up for an RSS feed. [KVT]

 

FDA Approves First-Ever Scorpion Sting Treatment: Who Knew?

I had no idea that scorpion stings were so frequent and that there was no treatment -- until now. According to a press release about the new product called Anascorp, produced by a Mexican company called Instituto Bioclon and licensed to Rare Disease Therapeutics:

[v]enomous scorpions (Centuroides) in the U.S. are mostly found in Arizona. Severe stings occur most frequently in infants and children, and can cause shortness of breath, fluid in the lungs, breathing problems, excess saliva, blurred vision, slurred speech, trouble swallowing, abnormal eye movements, muscle twitching, trouble walking, and other uncoordinated muscle movements. Untreated cases can be fatal.

Hat tip to Clifford S. Mintz, PhD over at BioJobBlog. [KVT]

American Interests and Global Water Resources

Addressing water quality and quantity issues throughout the world is critical to achieving the United Nations Millennium Development Goals. According to the U.N.World Water Assessment Programme (WWAP) fact page, the availability of accessible, adequate supplies of clean water play a key role in achieving all eight goals. Some of the links between water and the goals are obvious: eradicating extreme poverty and hunger, improving health, reducing mortality, fighting disease, and achieving environmental sustainability, which are a large proportion of the goals, require the availability of water for sanitation, growing crops, and maintaining ecosystems. But even achieving universal primary education and promoting gender equality, goals 2 and 3, rely on water availability: WWAP indicates that children, often girls, are frequently prevented from attending school because they are in charge of collecting domestic water at home, plus there is often a lack of separate toilet facilities at schools.

The United States has a critical role to play in improving international water resource management. A recent presentation to the Universities Council on Water Resources (UCOWR) and National Institutes for Water Resources (NIWR) by the Director of the U.S. Army Corps of Engineer’s Institute for Water Resources, Robert Pietrowsky, available here, describes how the U.S. is accepting this role. Mr. Pietrowsky made a compelling case for the importance of improving water management, pointing out that:

• About one out of six, ~ 1 billion people, lack access to safe water;
• 80% of diseases are carried by water;
• Over 90% of deaths from diarrheal diseases in developing world are children under 5 yrs old;
• A child dies every 20 seconds from waterborne disease;
• 3-5 million people dying annually from this, with $125 billion in workday losses/yr;
• Millions of women and children spend several hours per day collecting water from distant, often polluted sources;
• In just one day, more than 200 million hours of women’s time is consumed collecting water for domestic use;
• 443 million school days are lost each year due to water-related illness.

One of the most encouraging revelations in the presentation is that the U.S. Government is committed to increasing its role in improving world water resources. Much of this is due to the Senator Paul Simon Water for the Poor Act signed into law in 2005, which makes access to safe water and sanitation for developing countries a specific policy objective of U.S. foreign assistance programs. And, following commitments made in Secretary of State Hillary Clinton’s speech on World Water Day 2011, the U.S. Agency for International Development (USAID) is preparing a new water strategy based upon

• Strengthening institutional and human capacity;
• Mobilizing financial support;
• Advancing science and technology & sharing U.S. expertise;
• Building partnerships that deliver meaningful results on the ground; and
• Identifying priority countries and key approaches for achieving U.S. government objectives.

Finally, Mr. Pietrowsky also pointed that the U.S. National Military Strategy offers more justification to address world water needs, since it identified water scarcity as an increasing threat to governance, and water shortage, floods, and natural disasters caused by climate change are also causes of destabilized governments and thus threats to national security. These all justify U.S. involvement in promoting and supporting effective integrated water resource management in other countries. To respond to that need, The IWR has set up an International Center for Integrated Water Resource Management, a consortium operating under the auspices of UNESCO, to address water security and other water-related challenges by regional and global action.

Teaching international environmental law is often depressing when it comes time to cover the role that the US plays in international environmental agreements, since we have refused to become parties to so many of them. For example, the Senate has not ratified the Convention on Biological Diversity, the Kyoto Protocol to the U.N. Framework Convention on Climate Change or the U.N. Convention on the Law of the Sea. Congress has not even passed a climate change bill that would begin to fulfill some of the commitments it made under the UNFCCC, to which the U.S. is a party. However, many U.S. agencies are quietly playing their role in helping to address global environmental problems, and it is good news that the Army Corps of Engineers is taking a lead role in helping improve global water resources.

[MM]

Judging Capacity to Make Medical Decisions

For most patients, mental capacity to make medical decisions either clearly exists or is clearly absent. But for a number of patients, including those with developing Alzheimer disease, it may not be obvious whether mental capacity is present.

How accurate are physicians at detecting a patient's incapacity? A recent review-of-the-literature study found that physicians “missed the diagnosis in 58% of patients who were judged incapable” in a formal, independent assessment. On the other hand, physicians generally were correct when they made a diagnosis of incapacity. The researchers also found that the best formal assessment tool for measuring capacity is the Aid to Capacity Evaluation. Laura L. Sessums, Does This Patient Have Medical Decision-Making Capacity?, 306 JAMA 420 (2011).

{DO}

Guest Blogger J. Janewa OseiTutu: Intellectual Property & Public Health

I would like to thank Katharine Van Tassel for inviting me to contribute to the Health Law Profs Blog as a guest blogger. I am excited to have the opportunity to participate in this forum! Over the next few weeks, I will discuss intellectual property as it relates to global health and trade. I will start with a brief introduction to some of the issues before addressing specific topics in subsequent posts.

 How does intellectual property relate to public health? Pharmaceutical companies invest tremendous financial resources in the research and development of new drugs and they seek to recover some of these costs through the market exclusivity they obtain through patent protection. In this way, these private intellectual property rights are seen to stimulate innovation. However, in the debate about the impact of minimum global standards for intellectual property rights, and patents in particular, the issue of health and access to medicines has presented one of the most powerful and compelling arguments against the global development and enforcement of high intellectual property standards. 

 Prior to the birth of the WTO in 1995[1], each nation was largely free to determine the appropriate level of intellectual property protection in light of its national goals and interests.  The international agreements on intellectual property that pre-dated the WTO, such as the Paris Convention for the Protection of Industrial Property and the Berne Convention for the Protection of Literary and Artistic Works did not prescribe enforceable minimum intellectual property standards. When the WTO Agreement on Trade-Related Intellectual Property Rights (TRIPS) entered into force in 1995, WTO members were required to provide a certain standardized level of intellectual property protection. While implementation delays of 5 years and 9 years were provided for developing and least developed countries respectively, this has not proven to be sufficient. Further, if a member state fails to comply with it obligations under the WTO Agreements, other member states can initiate a dispute using the WTO dispute settlement mechanism.

For instance, in May 2010, Brazil and India filed complaints against the European Union (EU) and the Netherlands at the WTO over the confiscation of generic drugs in transit. The EU border seizures were part of its intellectual property enforcement program. The drugs in question were not patent protected in either the point of origin or the final destination. Brazil and India cited a number of provisions under TRIPS in support of their complaints. Neither of these cases has proceeded to a dispute settlement panel, and the dispute between India and the EU was settled last week.

 Prior to these recent complaints, standardized intellectual property rights under the WTO resulted in health-related dispute settlement cases like the 2001 Canada – Patent Protection of Pharmaceutical Products case in which the Government of Canada sought to defend the regime it had in place in order to allow the quick entry of generic drugs into the market. According to the EU, the rights of the patent holder to the full 20-year patent monopoly were not being respected as required by TRIPS. According to Canada, the rights of the patent holder should not take precedence over the public interest in access to low cost medicines.  Ultimately, the case was decided primarily based on the interests of the patent holder.

 Since that time, the WTO member states have acknowledged, through the Doha Declaration on the TRIPS Agreement and Public Health, the relationship between intellectual property rights and public health.

 - J. Janewa OseiTutu

---

[1] Although the General Agreement on Tariffs and Trade (GATT) has been around since 1947, its successor, the WTO did not come into being until 1995.  Intellectual property rights were also first merged with international trade framework with the creation of the WTO in 1995.

Introducing Guest Blogger J. Janewa OseiTutu

The Health Law Prof blogging team would like to welcome our guest blogger for the month of August, J. Janewa OseiTutu. Here is a short bio:  

J. Janewa OseiTutu is currently a Visiting Scholar at the University of Pittsburgh School of Law and an attorney with the Department of Justice in Ottawa where she provides legal advice to the equivalent of the Department of Commerce.  She had advised on legal issues relating to copyright, trademark, and patent law, policy and procedure as well as on legal issues relating to patented medicines and infringement. In addition, Ms. OseiTutu has expertise on geographical indications, traditional knowledge, genetic resources, and has advised on submissions to the World Intellectual Property Organization, been a delegate to the World Trade Organization TRIPS Council, and member of negotiating team in bilateral trade negotiations between Canada and the European Union. From 2009-2011, she was a Visiting Assistant Professor at the University of Pittsburgh School of Law where she taught International Intellectual Property, International Trade and Estates & Trusts. Prior to that she clerked for the Hon. Judge Emile Short, and the Judges of Trial Chamber II at the United Nations International Criminal Tribunal for Rwanda in Tanzania.

Ms. OseiTutu holds an LL.M. (Distinction) in International and Comparative Law from McGill University, with a focus on trade-related intellectual property. She has a J.D. from Queen’s University in Kingston, and a B.A (Hons.) from the University of Toronto. Her scholarship intersects intellectual property law, intangible cultural property, trade law, and international development.  She has published articles on intellectual property, bio-piracy and traditional knowledge. Ms. OseiTutu’s recent article, Value Divergence in Global Intellectual Property Law (forthcoming Indiana L.J. 2012), considers the influence of societal values, including values regarding healthcare and education, on domestic views about the appropriate role of intellectual property law in society.