NCD prevention in COVID-19 litigation: What are the future implications for NCDs and the law?
| Author | Elisabet Ruiz Cairó, Daniel Hougendobler, Kritika Khanijo, Benn McGrady and Kate Robertson |
| Pages | 214-233 |
NCD prevention in COVID-19 litigation:
What are the future implications
for NCDs and the law?
Elisabet Ruiz Cairó, Daniel Hougendobler,
Kritika Khanijo, Benn McGrady and Kate Robertson1
Abstract
Caribbean countries adopted measures during the acute phase of the COVID-19
pandemic that impacted upon NCD risk factors. This article describes case law from
around the world where similar interventions were challenged, shedding light on
legal questions, such as what duties and powers States bear to regulate NCD risk
factors and what protections States must afford the population on NCDs. Public
authorities are granted a broad margin of discretion to regulate to protect health and
additional NCD prevention measures may be justiable in a public health emergency,
but measures are less likely to survive scrutiny if they increase NCD risk factors.
Keywords
NCDs, COVID-19, fundamental rights, proportionality, health law
Public health interventions to address the COVID-19 pandemic have resulted
in extensive litigation worldwide. Legal challenges have been made on a variety
of different grounds, including claimed violations of the rights to health, non-
discrimination and property, as well as freedom of trade and occupation, freedom of
assembly, and freedom of speech and expression. Noncommunicable diseases (NCDs)
have featured in this litigation in a variety of ways, including through challenges to:
•
measures with an impact on NCD prevention, such as restrictions on tobacco
products and alcoholic beverages;
•
measures aecting access to treatment for people living with NCDs, including
on grounds that their right to health has been violated; and
• measures aecting other aspects of the lives of people living with NCDs,
including their right to work and access to public insurance schemes.
1 Public Health Law and Policies Unit, Health Promotion Department, World Health Organization.
215 NCD prevention in COVID-19 litigation: What are the future implications
for NCDs and the law?
This article focuses on the rst category of measures and describes case law from
around the world where interventions addressing COVID-19 have affected NCD
prevention. The article rst shows that these measures are relevant to the Caribbean
because of the increasing burden due to NCDs in the region and the adoption of
similar measures to those described in this article during the COVID-19 pandemic
(Section 1).2 The article then highlights two categories of cases:
• Some States adopted additional measures with the aim of contributing to
the prevention of NCDs during the COVID-19 pandemic, namely through
restrictions on tobacco products or alcoholic beverages (Section 2); and
• Some States adopted measures that had, as an unintended consequence,
a step back in existing NCD prevention measures, including through
closure of schools, sport facilities and community programs (Section 3).
In both cases, the Legislature, the Executive and/or the Judiciary played a role
in promoting or protecting NCD prevention through the COVID-19 response. The
case law frames and sheds light on a number of legal questions, such as what claims
for infringement of fundamental rights mean for the duties and powers States bear to
regulate NCD risk factors, under what circumstances an emergency might justify State
action on NCD risk factors, and what protections the population must be afforded
by States on NCD prevention, including in the context of an emergency. Important
lessons for health ofcials with respect to due process, the type and conclusiveness
of evidence required, and the margin of discretion afforded to protect public health
may also be drawn from these legal challenges. While the answers to these questions
will not be the same in every jurisdiction, COVID-19 litigation gives new insights
into how countries may use the law to regulate NCD risk factors in the context of
an emergency. The validity of emergency measures aimed at addressing NCD risk
factors are assessed in some jurisdictions based on their objectives, rationality,
proportionality, and compatibility with fundamental rights. While public health
emergency laws may grant a broad margin of discretion to public authorities to take
action, courts will still evaluate compliance with administrative and constitutional law.
This article therefore describes challenges to measures adopted by public
authorities to prevent NCDs in the context of the pandemic and to measures adopted
by public authorities to respond to COVID-19 which impacted other programmes
2 The Caribbean here is understood as comprising the 14 independent CARICOM Member States
(Antigua and Barbuda, Bahamas, Barbados, Belize, Dominica, Grenada, Guyana, Haiti, Jamaica,
Saint Lucia, St Kitts and Nevis, St Vincent and the Grenadines, Suriname, Trinidad and Tobago).
Other countries in the region are therefore excluded from the analysis of this article.
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