Government approval of a new mining operation. A policy to deport undocumented immigrants. An international agreement that enhances pharmaceutical patent protections. All will affect health and health equity, but will policymakers factor these effects into their decisions?
The law could ensure that it becomes standard practice to assess and take into account anticipated health and health equity effects of significant policy decisions. These assessments can then inform the decisions so that they protect health and uphold people’s rights. This is beginning to happen through health impact assessments (HIAs), with several jurisdictions requiring HIAs in certain circumstances (see Panel at end). Environmental impact assessments (EIAs) remain the most common legal route to assess activities’ impact on health, though they often contain inadequate health analyses.
The potential of HIAs extends beyond protecting against policies that may undermine health to expanding health-promoting policies to better advance health and health equity. Can a program to provide schoolchildren with nutritious meals be extended to the most vulnerable children—those not in school? Does an initiative to build new urban parks locate them where opportunities for exercise are most limited?
EIAs provide a model for incorporating such analyses into law. The Convention on Environmental Impact Assessments in a Transboundary Context (CEIA) requires states to undertake an EIA for activities “likely to cause a significant adverse transboundary impact”, and to incorporate findings from the assessment and related consultations in their final decision.
A protocol to the CEIA extends the assessment requirement to the domestic realm. Meanwhile, in contrast to the handful of national requirements to conduct HIAs, by 2005 more than 100 countries had laws or regulations on EIAs.
It is time to bridge the gap between legal norms and the tremendous potential of HIAs. The importance of Health in All Policies is now universally recognized, with HIAs a critical tool to implementing this approach. The potential of HIAs to help ensure a coherent and fully integrated focus on human health across the diverse Sustainable Development Goal agenda is added reason for the rapid scale-up of HIAs. Meanwhile, expanding experience with HIAs, guidance from numerous jurisdiction, and emerging examples of domestic legislation provide ever-surer footing for international legal norms.
It is time, therefore, for states to negotiate a global legal instrument to establish common international standards on HIAs and ensure accountability to them. As in the environmental realm, the instrument that would best achieve this is an international treaty, although it may be a stepwise process to reach that point. In any case, the ultimate goal should be a solid, legally-based commitment among states to institutionalize HIAs, providing operational guidance and a framework for states’ accountability. And as with the CEIA in concert with its Protocol, the instrument should cover both policies with transboundary and those with only domestic effects. With the capacity to carry out HIAs varying widely, it will need to include commitments to capacity-building and international cooperation.
Guidance should include such issues as when HIAs are needed, any differences between HIAs with transboundary and with purely domestic effects, and possible conflicts between the findings of environmental and health impact assessments. The instrument should also address implementation of findings, process benchmarks, accountability and remedies for non-implementation, incorporation of HIA outcomes into policies, and an assessment of how implemented policies impact health and health equity.
Guidance can come from international practice on the right to health, as elaborated in General Comment 14 of the UN Committee on Economic, Social and Cultural Rights and subsequent legal developments. This could also inform how states should respond to HIA findings: ensuring that all policies conform to their right to health and other human rights obligations. EIA good practices could provide further guidance.
How HIAs are conducted is vitally important for their legitimacy, particularly the central role of the public and potentially affected communities. HIAs must not become technocratic or top-down exercises, but rather should consistently ensure the population’s right to participation “in all health-related decision-making.” Further guidance can come from the Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, with its provisions on facilitating early, effective, and informed participation, and ensuring that decisions take into account the outcome of the participation. An HIA legal instrument might go further still, facilitating participation and ensuring the free and informed consent of highly marginalized communities.
In its role of global health leader, WHO should take the lead in developing this instrument. Newly elected Director-General Tedros Adhanom Ghebreyesus should include a legal instrument on the HIAs among his priorities. His stated commitment to the right to health and health at the center of global policymaking is encouraging in this respect. The potential of HIAs to move people’s health and rights nearer the center of policy considerations is too great to leave that potential untapped.
Panel: Institutionalizing health impact assessments
Countries with laws requiring health impact assessments:
* Thailand (constitutional requirement for an HIA and public hearing for projects or activities that may seriously affect health, while the National Health Act empowers individuals to request and participate in upon an HIA for a public policy)
* Slovakia (Public Health Act empowers public health authorities to require HIAs for development and other projects that may have possible negative effects on public health)
* Lithuania (Law on Public Health requires a public HIA to commence or expand economic activities that pose a risk to human health)
Sub-national jurisdictions with laws requiring health impact assessments:
* USA (multiple states have laws requiring HIAs or broader assessments that may encompass health, in sectors including the environment, energy, transportation, food and agriculture, and waste disposal)
* Canada (Quebec’s Public Health Act requires the province’s health minister to be consulted on laws and regulations that may significantly affect the health of the population, a requirement that has led to an inter-ministerial HIA mechanism)
* Australia (Victoria’s Public Health and Wellbeing Act authorizes the state’s minister of health to require the health ministry to conduct an HIA)
A number of other countries have health agencies that are actively promoting HIAs. Among them are Finland, New Zealand, Switzerland, the UK, and the USA.
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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.