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Alumni Dispatches

Michele Forzley

JD, MPH ’03

Where Are the Lawyers?

michele forzleyWithin the first few years of practicing in the field of public health, whether domestic or internationally, it becomes clear that health is the result of multiple causes and conditions that are not treated with clinical interventions no matter how proven they may be. These conditions, political, social and economic forces are “the social determinants of health and are responsible for a major part of health inequities between and within countries.” It ought to be obvious then that if the determinants are social then so must be the remedies. Despite this clear logic, neither health reforms nor health interventions include any of the most basic or possible elements and actors of other sectors from which social interventions could be devised. One key sector the absence of which this note discusses is that of the law and legal professionals. As a lawyer and public health professional, I ask where the lawyers are.

Too often I have seen economists or public health PhDs attempt to do the work of lawyers under the guise of “policy” practice. Apart from this approach being arrogant, it is the unlicensed practice of law and should not be tolerated. Yet no one seems to be shocked at what is wholly negligent and a sure step to missing what could be essential to success. Examples abound, but one most easy to understand is work on fighting corruption in the health sector, work that requires a functioning criminal and civil justice system. Drafting national health legislation and solving problems in public procurement are others where lawyers are missing. Worse yet, field practitioners and technical specialists have no access to lawyers to ask the day-to-day and larger questions that arise.

This is true in USAID, the World Bank and at the WHO. Lawyers at these institutions serve the organizations as a whole entity—not the staff that performs the mission of each in the field. This void is a fatal weakness, despite the numerous successes the law has brought to the field.

Lawyers are trained and experienced in the application of a legal and regulatory approach. A legal analysis at the start of every health project would determine if any intervention based in the law would aid any problem solution or the accomplishment of goals. A lawyer could determine if a rational selection of laws and regulations applied at the right jurisdictional level would be of help or essential to the desired outcome. And during the project, legal skill should be accessible to answer questions as they arise. A legal intervention can mean inserting, applying or enforcing or augmenting a law and/or regulation. It can also mean utilizing the basic legal mechanisms of tax, spend, and regulate, the remedies such as sanctions, fines, suspensions, or jail; the tools such as damages and equitable relief and finally contract law. These interventions are well known to lawyers. Research is not needed to prove their value. What is needed is to include lawyers on all projects so that legal acumen is available.

Unfortunately, many public health professionals are not remotely aware of how the law can be relevant. Public health programs do not prepare graduates to have the ability to understand the legal implications of interventions nor should they. The law, like medicine, is a profession. A competent practice requires education and training. The legal profession should be a robust and required part of any health team and funded accordingly.

Public health successes to date are randomly peppered with interventions based in the law but without lawyers in the field, the law is an underutilized tool. Given that it is now clear the MDGs will not be met by 2015, can public health continue with closed doors to other disciplines, especially one with a success record?

Michele Forzley is a global public health lawyer and consultant to the Global Health Council, WHO, World Bank, Global Fund and other international organizations.

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