Public Health Law. Disease prevention and health promotion as tasks of the state

• Applicant: Professorin Dr. Andrea Kießling
• Subject Area: Public Law
• Term: since 2022
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 499374326

The book has its starting point not in a theoretical-dogmatic but in a social problem: It starts from the conditioning factors for health and disease and asks to what extent the state must or may influence these factors in order to protect and promote the health of the population. The term "öffentliche Gesundheit" is based on the English term "public health". Based on this term, the study examines governmental, population-based interventions in disease prevention and health promotion. „Population-based" is defined as legal norms that follow a de-individualized approach: They either protect the health of indeterminate third parties or do not require that there be an individual need or risk. For this reason, this paper is not concerned with individual entitlements to health benefits, but with the regulation of health risks that result from behavioral factors (the lifestyle) and relational factors (socioeconomic status, hygienic conditions, socialization within the family) and affect the health status of the population. Disease prevention and health promotion are thereby attributed to the risk prevention approach. In the constitutional part of the book, the framework conditions for state disease prevention and health promotion are described in detail: The duty of the state to protect the population from external influences that could have a negative impact on health and personality development arises from the constitutional duty to protect – based on Art. 2 II 1 GG and Art. 2 I, Art. 1 I GG. From an investigation of the meaning of the welfare state principle it is derived that from this principle and Art. 2 II 1, Art. 2 I, Art. 1 I GG a duty to social risk precaution results. This obligates the state to provide the determinants of health (which is a condition of autonomy and participation) and to promote autonomy and participation directly. In this way, the social factors that affect the autonomy of the individual also come into the state's view. In the final part of the book, three "reference health risks" are considered: 1. emerging human-to-human transmissible pathogens (such as SARS-CoV-2), 2. lifestyle risks such as tobacco use and an unhealthy diet, and 3. family health socialization. Here, particular structural challenges encountered in regulating each risk are analyzed in more detail, taking into account the results of the constitutional inquiry.

• DFG Programme: Publication Grants