09.04.14

Ebola: The Global Health Tragedy of Our Times and How Law is Essential in Preventing Public Health Catastrophes

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By Ana Ayala and Tanya Baytor
Despite the World Health Organization (WHO) declaring the Ebola outbreak in West Africa an international public health emergency and mobilizing international assistance to stop further spread of the virus, we continue to see the number of cases and deaths rise, particularly in the countries with the lowest resources, namely Liberia, Guinea, and Sierra Leone. WHO recently reported that we are now at more than 1,900 deaths from Ebola in Africa. It is projected that 10,000 people will be infected by September 24, and WHO predicts that the caseload will rise to 20,000, of which half will die, in the next nine months. The international community’s response has been reactive, mainly because there is no other option. With the Ebola tragedy now attracting worldwide attention, it would be a missed opportunity not to underscore the importance of law in preventing such devastating international public health crises in the future.

New York Times


As “global health lawyers” who have directly trained medical and public health government officials from many countries on the legal aspects of pandemic preparedness, we have found that it is challenging to highlight the importance of law in building effective public health infrastructures. A country’s ability to effectively respond to an outbreak, and the availability of resources like medical supplies and health care workers depends to a great extent on legislation that sets the foundation for a strong public health system and is aligned with the WHO’s International Health Regulations (IHR) (2005). The IHR is a legally-binding instrument which 196 countries have ratified to date that requires countries to take a number of measures to prevent, respond, and control the spread of disease. To be effective, each country needs to implement these international obligations within its domestic legal system in light of its own legislative, governmental structures and policies. Without a domestic legal framework to support and enable various essential public health activities, a country’s ability to prevent, respond, and control serious public health threats is greatly disadvantaged.
For these reasons, a not so visible story needs to be told. To start, why is implementing the IHR obligations into national legislation so critical to public health emergency preparedness and response? National legislation, regulations, and other legal instruments have the tremendous potential to help support and enable the operationalization of the IHR. They are not only important tools to put public health policy into effect but can provide the necessary framework (or backbone) for a range of public health activities and specific operational functions. In some countries there may be laws and regulations that conflict with obligations under the IHR and require revisions to existing legislations to fully and efficiently implement what are called “core capacities.” These core capacities are the minimum set of standards for public health surveillance and response, and they include:

  • establishing a specific mechanism to enable timely notification to WHO of public health risks that could potentially become an international public health emergency;
  • making sure that national legislation and policy allow for the implementation of the IHR;
  • ensuring that funding is available for carrying out all necessary activities;
  • developing proper surveillance systems and response plans;
  • establishing laboratory services; and
  • having the necessary human resources for carrying out activities.

The broad application of the IHR to a range of health hazards makes national legislation even more important because it can facilitate the necessary coordination across a range of entities and government levels. For example, a public health risk may require the coordination of ministries of health, environment, transportation, energy and foreign affairs. Essentially, laws are critical in facilitating this coordination to ensure a rapid and comprehensive response. With adequate domestic laws in place, they can serve to institutionalize and strengthen the role of the IHR within a country.
Our concern over the lack of attention being given to law in preparing for public health emergencies, including the current Ebola outbreak, stems from our own personal experience providing technical assistance to governments on the IHR. Between 2010 and 2011, we had the invaluable opportunity of working with the WHO and two other academic institutions in training public health and medical government officials from around the world on the implementation of the IHR. We were specifically charged with leading the legal component of the curriculum. Over nine weeks, we trained participants on the specific obligations under the IHR, highlighted the importance of establishing legislation in addition to building or strengthening their technical public health emergency preparedness and response strategies. The majority of participants came from ministries of health and were responsible for developing public health surveillance and responses to public health emergencies like Ebola.
This experience reinforced the fact that many countries are not prepared to respond to serious public health crises and the urgent need to establish the necessary legislation to implement the IHR, which would in turn lead to the strengthening of the country’s public health infrastructure. A common grievance among participants, especially those from low-income countries, was the concern over the insufficient or lack of national legislation that would support the implementation of the IHR at home. Many of them had difficulties even identifying their country’s public health laws and regulations and engaging with other non-health-related governmental sectors. They were unaware of their legal authority to issue public health orders like quarantines or mandatory testing. We learned that a number of Ministries of Health do not have lawyers on staff. Many participants also either lacked connections with legislators or faced challenges convincing legislators of the importance of implementing the IHR. Additionally, their governments did not have adequate resources to conduct a legal assessment to determine what changes were required to reflect their international obligations under the IHR and allow them to do their work.
These frustrations were only confirmed in the WHO’s 2012 Report on IHR Core Capacity Implementation, which revealed that only 19% of countries in the African Region had implemented the IHR legal requirements into their national legislation. Unfortunately implementation of the core capacities in the countries affected by Ebola has been weak. Based on WHO data from 2013, Nigeria’s overall implementation status is at 25%. No data is available on Guinea, Liberia or Sierra Leone, but given what we know about the countries’ public health systems and how quickly the Ebola virus has spread, it would be safe to assume that they have not fully or sufficiently implemented their obligations under the IHR. What is also worrying is that the region is at less than 25% in implementation with respect to points of entry, which facilitates the transmission of infectious diseases like Ebola between countries. In fact, Liberia airport officials failed to properly screen the individual responsible for bringing Ebola to Nigeria and permitted him to board the plane even though he was clearly sick and the hospital that had diagnosed him with Ebola had reported him to authorities.
During our media briefing on Ebola on August 12, 2014, we stressed that a running theme has been that public health systems in the affected countries have been ill-prepared to stop the spread of the disease. Just recently, the O’Neill Institute’s Faculty Director Lawrence Gostin proposed a $200 million WHO “Health System Fund.” The fund would be aimed at ensuring that sufficient funds are available to “build the basic health systems and community capacities to respond to the pandemic in affected and neighboring countries,” as well as ensuring “transparency and guidance for countries, re-building trust in government and the international community.”
To this proposal, we would specifically add that, should the Health System Fund (or any other fund) be created to support health system strengthening, it must, without a doubt, provide support for capacity-building activities and consultations to governments on the legal implementation of the IHR at the domestic level. National legislation is integral to building and strengthening health systems and cannot be neglected. One significant benefit of the IHR is that, to truly have an impact, it requires countries to have adequate public health infrastructure. Otherwise, its effective implementation is unattainable. Another valuable aspect of the IHR is that, as an international instrument, it imposes obligations on governments to provide international assistance and help build capacity in resource-limited countries. These obligations would include supporting the legal implementation of the IHR through the creation of relevant domestic legislation, and thus build the foundations needed to prevent future global health emergencies and ultimately save lives.

Posted in Global Health, Health reform, uncategorized, WHO ; Tagged: , , , , .

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The views reflected in this blog are those of the individual authors and do not necessarily represent those of the O’Neill Institute for National and Global Health Law or Georgetown University. This blog is solely informational in nature, and not intended as a substitute for competent legal advice from a licensed and retained attorney in your state or country.

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