Can law help to prevent cancer and to improve cancer treatment? How, exactly?
8 July 2010
These were the major themes explored in a unique, inter-disciplinary conference convened by Sydney Law School, the International Union Against Cancer (UICC), and Sydney Medical School, exploring the role of law and regulation in cancer prevention and treatment, both nationally and globally.
Preventing cancer, promoting global health and development
The keynote oration for the conference, on 10 June, was presented by Professor Robert Beaglehole, former Director of the Department of Chronic Disease and Health Promotion at the World Health Organisation. Chaired by the Dean of Medicine, Professor Bruce Robinson, the oration also featured Mr Mark Dreyfus QC, MP, Chair of the House of Representatives Standing Committee on Legal and Constitutional Affairs.
Mr Dreyfus opened the conference by reviewing Australia's experience with tobacco regulation, including the recent initiative by the Rudd government to increase the tobacco excise by 25% from April, and to move to plain packaging by 2012. Mr Dreyfus' opening words were recalled the next day by Patricia Lambert, Director of the Legal Consortium at the Campaign for Tobacco-Free Kids, Washington D.C.: "Government has a moral obligation to use its powers to protect its citizens". Personal liberty is important, and a responsible approach involves a careful and sometimes controversial balancing exercise.
In his keynote address, Professor Beaglehole pointed to the heavy global and economic burden of non-communicable diseases, including cancer, and the importance of regulation and legislation to the protection and improvement of population health. On the global scale, cardiovascular disease, cancer, chronic respiratory diseases and diabetes vastly outweigh the number of annual deaths caused by HIV/AIDS, tuberculosis, and malaria, although this is not well recognized. Between 2005 and 2030, cancer deaths are expected to increase from 7.5 million to 11.4 million, largely due to the spread of risk factors for cancer, and population ageing. In addition to tobacco - which alone is responsible for 1.8 million deaths each year - Professor Beaglehole pointed to the global impact of alcohol misuse, obesity and poor diet, and the need for effective regulation of both the food and alcohol industries.
Professor Beaglehole pointed out that at the global level, cancer has been seriously neglected, including cancer prevention. The World Economic Forum's Global Risk Landscape 2010 identifies chronic disease as one of the most severe risks in terms of economic consequences (exceeded only by oil price spikes, asset price collapse and major retrenchments in developed economies), and also as one of the risks considered most likely to materialize. Professor Beaglehole pointed out, however, that the high-level meeting of the United Nations General Assembly on non-communicable diseases, scheduled for September 2011, represents a golden opportunity to recognise and integrate cancer and other non-communicable diseases into the architecture for global health beyond 2015. By regulating cancer risk factors, governments can help to protect future generations from preventable cancers, while also making impressive inroads into deaths and disability from heart disease and stroke, diabetes and chronic obstructive pulmonary disease.
Legislate, regulate, litigate? Legal perspectives on cancer prevention and treatment
At the conference on 11 June, nine speakers explored a wide range of topics relating to law's capacity to prevent cancer and to improve cancer treatment. These papers are to be published as a symposium in a future issue of Public Health, the Journal of the Royal Society for Public Health in the United Kingdom.
Patricia Lambert,Director of the Legal Consortium at the Campaign for Tobacco-Free Kids, Washington D.C. reviewed experience with the Framework Convention on Tobacco Control (FCTC), and considered whether it provides a model for dealing with other cancer risk factors. In her view, the tobacco, alcohol and food industries - despite their differences - tend to respond in a similar way to the prospect of tighter regulation: they emphasise that their products are legal, they emphasise the primacy of adult choice, and the certainty that regulation will cause job losses. They offer partnerships, both nationally and regionally, although this tends to weaken governments' commitment to regulation. Ms Lambert praised the Australian government's decision to require plain packaging of tobacco, calling it a "signal to the world that this government is not going to be intimidated by the tobacco industry".
Sarah Mackay, Legal Policy Adviser to the Obesity Policy Coalition based at the Cancer Council Victoria, spoke more specifically of the role that improved food labeling could have in helping to encourage healthier eating patterns, and the need to regulate the advertising of food products of poor nutritional content. She called attention to the independent review of food labeling commissioned by the Council of Australian Governments (COAG). While food labeling alone is unlikely to have a major impact on obesity rates, it is an important starting point: it helps to prevent misleading marketing, it informs consumers, encourages healthier food choices and the re-formulation of healthier food products by industry.
Alcohol is responsible for around 500,000 cancer deaths each year, but the "very powerful, entrenched alcohol industry" has been largely successful in resisting the kinds of legislative controls on advertising and promotion that are needed. Professor Robert Beaglehole floated the need for a Framework Convention on Alcohol Control, building on the recent WHO Global Strategy to Reduce the Harmful Use of Alcohol (endorsed by the World Health Assembly, 21 May 2010). Recognising the difficulty, in political terms, of strengthening the regulation of alcohol, Professor Beaglehold pointed out that alcohol is not only a major cause of cancer and chronic disease, but of road traffic accidents and injuries, domestic violence, and intoxication-related crimes. He pointed to a range of interventions transferable from tobacco to alcohol, including price (an excise tax graded by volume of ethanol), the regulation of advertising moving towards a sponsorship ban, and packaging and labeling that warns of the health impacts of excessive consumption.
Professor Roger Magnusson from Sydney Law School, a co-convenor of the conference, presented a conceptual model for understanding and locating the opportunities for law in the prevention of cancer and other chronic diseases. Public health lawyers and regulators need a workable model that not only identifies the main determinants of disease and the key settings for interventions, but a map of the legal strategies that law can adopt, and an appreciation of the contribution that different tiers of government can make within a federal system.
An understanding of World Trade Organisation (WTO) rules is critical to effective national policies. A/Professor Tania Voon from Melbourne Law School, delivering a paper written jointly with A/Professor Andrew Mitchell, reviewed the key WTO Agreements and the extent to which they potentially constrain - or may sometimes support - national efforts to address products and policies that contribute to cancer and cancer risks.
Associate Professor Bebe Loff, Director of the Michael Kirby Centre for Public Health & Human Rights at Monash University, opened with a powerful quote from Alicia Aly Yamin:
"A rights perspective forces us to see the suffering that is not the result of "natural" biological causes but rather stems from human choices about policies, priorities, and cultural norms, about how we treat each other and what we owe each other".
Professor Loff questioned the extent to which the World Cancer Declaration of the International Union Against Cancer aligns with the priority causes of death and disability in the poorest countries in the world. She pointed to the Alma-Ata Declaration, emphasizing the importance of non-discriminatory access to health services, minimum essential food, basic shelter, sanitation and a potable water supply, access to essential drugs, and a national public health strategy that gives due attention to the needs of marginalized and vulnerable groups.
Professor Ian Olver, CEO of the Cancer Council Australia, pointed to a diverse range of legal and regulatory barriers to optimal treatment for Ausralian cancer patients. These include the potential for privacy law to undermine the collection of data by cancer registries; discrepancies between the timing of the regulatory process for approval of new drugs targeting gene-specific cancers and tests for the gene target; the privatisation of the human genome through the patenting of genes and of tests for genes; the governance of clinical trials; and the need for the future cancer workforce to include physicians assistants and nurse practitioners. Professor Olver called for the Australian Patents Act 1990 to be amended, arguing that "We believe the process of isolating or purifying genetic materials is an act of discovery, not invention".
Mr Jonathan Liberman,Senior Legal Policy Adviser, International Union Against Cancer, pointed to the fact that 5 billion people in the world have low or no access to opioid analgesics, and no or insufficient access to treatment for moderate to severe pain. 84% of the world's morphine is consumed by high income countries representing less than 10% of the world's population. There are a number of causes of low global opioid availability. An important one is regulation that focuses excessively on preventing diversion and misuse at the expense of ensuring adequate availability. This imbalance is seen both within many countries and in the activities of the main agencies of the international drug regulatory system. Mr Liberman also discussed the relationship between international intellectual property law and access to cancer treatment. As the cancer burden continues to shift to low- and middle-income countries, increasing global attention will be focused on the tensions between patents and access to affordable cancer drugs.
A/Professor Cameron Stewart, Director of Sydney Law School's Centre for Health Governance pointed to the institutionalised context in which the majority of Australians will die, and to the role of law in providing an environment that encourages the best death possible. He was strongly critical of the different ways in which advance health care directives are treated in different states, arguing "should your capacity to be involved in your treatment be dictated by where you live, or where you get sick?" Although Australian law recognises substitute decision-makers when a person becomes incompetent due to illness, there are nevertheless nine different systems, a problem Professor Stewart summarised as "too many laws, too much uncertainty". Professor Stewart called for uniform, Australia-wide legislation, initiated through the Australian Health Ministers Advisory Committee (AHMAC) as one response to what he termed logo iatrogenesis, or "lawyer-made sickness".
If I were king or queen for a day, what would I do for cancer prevention and treatment?
The final session of the conference was a panel discussion moderated by Professor Simon Chapman, Professor of Public Health at the University of Sydney, entitled: If I were king or queen for a day, what would I do forcancer prevention and treatment. Well known for his advocacy in tobacco control, Professor Chapman reviewed the progress that has been made since 1973, through pack warnings, advertising bans, smoke-free restrictions, retail pack display bans, tax increases, and most recently plain packaging. Professor Chapman then acknowledged the reality of inertia and resistance to change in public health regulation, quoting F.W. Cornford:
"Every public action which is not customary either is wrong, or if it is right it is a dangerous precedent. It follows that nothing should ever be done for the first time".
If, however, public and political will exists to drive smoking rates below 15%, what are some of innovative ideas and concepts that public health advocates should begin to debate? At the present time, any adult in Australia can lawfully smoke, and yet knowledge of the harms and risks of smoking varies widely. Should smokers be licensed, Professor Chapman wondered? Should intending smokers be required to complete a program of education before making the "informed choice" to smoke?
Professor Chapman then challenged panel members to nominate their top priorities for cancer prevention. Professor Margaret Hamilton pointed to the importance of uncoupling alcohol from national competition policies, using a modified volumetric approach to alcohol taxation (with graded incentives for low-alcohol products), and regulating alcohol advertising and sponsorship. She called for more community involvement in liquor licensing decisions, and in calling for evidence supported measures to respond to intoxication and other forms of alcohol-related harm. Professor Hamilton pointed out that Australian corporations are major exporters of alcohol to the Pacific island countries and suggested that regulators should explore ways of ensuring that they operate within guidelines that would be acceptable in our own communities.
Professor Bonita ONZM spoke about calls by Maori leaders for a smoke-free New Zealand, and emphasised the need to continue working towards elminating demand for tobacco, not just tobacco "control". She then issued a challenge to the University of Sydney: go smoke free. If the University of Auckland can do it, why not the University of Sydney? Pointing to the depth of expertise in public health policy and advocacy at the University, Professor Beaglehole also challenged the University to make "concrete commitments" to "lead at the global level" in the prevention of cancer and other non-communicable diseases".
Studying health law and public health law at the University of Sydney
For those with an interest in health law, Sydney Law School offers a popular Master of Health Law (MHL), and two Graduate Diplomas, in Health Law, and in Public Health Law, respectively. Entry to these programs is open to law graduates, health and allied health professionals and other approved applicants who meet academic entry requirements.
For more information about the health law teaching program, contact its Director, Dr Kristin Savell or the Director of the Centre for Health Governance, A/Professor Cameron Stewart, or Professor Roger Magnusson.
For application forms and other information about enrolment, contact Ms Sue Ng, head of the postgraduate team.
Contact: Professor Roger Magnusson
Phone: +61 2 9351 0211